Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" and "hereunder” " and other words of similar import refer to this the Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “the word "from” " means “"from and including,” " and “the words "to” " and “"until” " each mean “means "to but excluding.” " The section titles, table of contents and list of exhibits appear as a matter of convenience only and shall not affect the interpretation of the Agreement. All references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; to any agreement, instrument or other documents (including any of the Loan Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms “including” and “include” thereof; to any Person (including Agent, a Borrower, a Lender or Fleet) shall mean “and include the successors and permitted assigns of such Person; to "including" and "include" shall be understood to mean "including, without limitation” " (and, for purposes of the Agreement and each other Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter general statement, which is followed by or referable to an enumeration of convenience only and shall not affect the interpretation of any Loan Document. All references specific matters to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (matters similar to the extent permitted by the Loan Documentsmatters specifically mentioned); (c) any section meanor to the time of day shall mean the time of day on the day in question in Atlanta, Georgia, unless otherwise expressly provided in the context otherwise requiresAgreement. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing by Agent pursuant to the Agreement or, in the case of a section Default, is cured within any period of cure expressly provided in this Agreement; (d) any exhibits and an Event of Default shall "continue" or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated be "continuing" until such Event of Default has been waived in writing by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such PersonLender. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein Value shall be denominated in Dollars, unless expressly provided otherwise, all Loans shall be funded in Dollars and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents Obligations shall be made repaid in light of Dollars. Whenever the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory phrase "to the Administrative Agent (and not necessarily calculated best of a Borrower's knowledge" or words of similar import relating to the knowledge or the awareness of a Borrower are used in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct Agreement or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any other Loan Documents. No provision of any Loan Documents , such phrase shall be construed against any party by reason of such party having, or being deemed mean and refer to have, drafted (i) the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, Officer of any Borrower or (ii) the knowledge that a Senior Officer would have obtained if he or she they had engaged in good faith and diligent performance of his or her duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of a Borrower and a good faith attempt to ascertain the matterexistence or accuracy of the matter to which such phrase relates. Certain terms in this Agreement are defined by reference Any Lien referred to a defined term in the Secured Notes Indenture and Agreement or any of the other Loan Documents as having been created in favor of Agent, any agreement entered into by Agent pursuant to the event Agreement or any of the other Loan Documents, any ambiguitypayment made by or to, inconsistency or conflict between funds received by, Agent pursuant to or as contemplated by any of the Existing Indenture Loan Documents, or any other act taken or omitted to be taken by Agent shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted for the benefit or account of the Agent and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectLenders.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Certain Matters of Construction. The Unless the context otherwise requires, (a) the terms “herein,” ”, “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any ; (b) terms used herein in the singular also include the plural and vice versa; (c) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; (d) all references to any instruments or agreements to which Lender is a party, including, without limitation, references to any of the Other Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof; (e) references herein or in any Other Document to any actions being taken (or omitted to be taken) by any Lender Party after a Default shall be presumed to mean, unless otherwise expressly provided, while such Default or Event of Default is continuing; (f) any pronoun used shall include the corresponding masculine, feminine and neuter forms; (g) the words “include,” “includes” and “including” shall be deemed to cover all genders. In be followed by the computation of periods of time from a specified date to a later specified date, phrase “from” means without limitation”; (h) the word “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “includewill” shall mean be construed to have the same meaning and effect as the word “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisionsshall”; (bi) any documentdefinition of or reference to any agreement, instrument or agreement include other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements, waivers and other modifications, extensions supplements or renewals (to the extent permitted by the Loan Documentsmodifications set forth herein); (cj) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) reference herein to any Person shall be construed to include such Person’s successors and assignsassigns (subject to any restrictions on such assignments set forth herein); (fk) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly providedthe words “herein”, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole “hereof” and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise“hereunder”, and all determinations (including calculations words of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculationsimilar import, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against to refer to this Agreement in its entirety and not to any party by reason of such party havingparticular provision hereof; (l) all references herein to Articles, or being deemed Sections, Exhibits and Schedules shall be construed to haverefer to Articles and Section of, drafted and Exhibits and Schedules to, this Agreement; and (m) the provision. Reference words “asset” and “property” shall be construed to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith the same meaning and diligent performance of his or her dutieseffect and to refer to any and all tangible and intangible assets and properties, including reasonably specific inquiries of employees or agents cash, securities, accounts and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectcontract rights.
Appears in 1 contract
Sources: Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; or (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean means the sole and absolute discretion of such Person. All calculations of ValueUnless the context otherwise requires, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of the Term Loan Borrowing Base Capacity, Revolver Excess Availability and financial covenantsFixed Charge Coverage Ratio) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. The Term Loan Borrowing Base Capacity calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent Agents (and not necessarily calculated in accordance with GAAP). The Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank the Agents or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to a Borrower’s “knowledge” which the interpretation or similar concept means actual knowledge construction of a Senior Officer, Loan Document may be subject to the laws of the Province of Quebec or knowledge that a Senior Officer would have obtained if he court or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term tribunal exercising jurisdiction in the Secured Notes Indenture Province of Quebec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property” and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.an “easement” shall
Appears in 1 contract
Sources: Term Loan and Security Agreement (Birks & Mayors Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all gendersgenders and the neuter form. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement (including any Loan Document and any Organic Document) include any amendments, restatements, amendments and restatements, supplements, waivers and other modifications, replacements, renewals, extensions or renewals and refinancings from time to time (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and permitted assigns; and (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person14.3.1. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or words of similar concept import means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement reference to any Loan Document shall be deemed to include any amendments, restatements, supplements, waivers and other modifications, extensions or supplements to, or renewals (to the extent permitted by the of, such Loan Documents)Document; (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include successors, permitted transferees and permitted assigns of such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1in Dallas, Texas (Central Time) unless otherwise specified herein; or (g) except as expressly provided, discretion of Administrative the Agent, any Issuing Security Trustee, any Fronting Bank or any Lender mean means the sole and absolute discretion of such PersonPerson exercised in a manner consistent with its duties of good faith and fair dealing; or (h) “property” or “asset” includes any real or personal, present or future, tangible or intangible property or asset and any right, interest, revenue or benefit in, under or derived from the property or asset. All calculations of ValueTo the extent not otherwise specified herein, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations for each Borrower shall be consistent with historical methods of valuation and calculationcalculation for such Borrower’s Borrowing Base, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Loan Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Security Trustee, any Fronting Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever any payment, certificate, notice or other delivery shall be stated to be due on a Borrower’s “knowledge” day other than a Business Day, the due date for such payment or similar concept means actual knowledge delivery shall be extended to the next succeeding Business Day, and such extension of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged time shall in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term such case be included in the Secured Notes Indenture and computation of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of any Interest Period Loan to be made in the event of any ambiguitynext calendar month, inconsistency or conflict between such payment shall be made on the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectimmediately preceding Business Day.
Appears in 1 contract
Sources: Loan, Security and Guarantee Agreement (MRC Global Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. The word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All Unless the context otherwise requires, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any documentdefinition of or reference to any agreement, instrument or agreement include document shall be construed as referring to such agreement, instrument or other documents as from time to time may be amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements, waivers and supplements or modifications set forth herein or in any other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) Section means, unless the context otherwise requires, a Section of this Agreement; (d) any section Exhibits or Schedules mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits Exhibits and schedules Schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s includes successors and assigns; (f) except as specifically otherwise provided (including, without limitation, in the definition of “LIBOR”), each reference herein to a time of day mean means such time of day at Administrative the Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of Administrative the Agent, any an Issuing Bank or any Lender mean means the sole and absolute discretion of such PersonPerson exercised in a manner consistent with its duties of good faith and fair dealing. All Except as expressly otherwise provided herein, all calculations of ValueNet Amount, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of a Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers The Loan Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative the Agent, any an Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of the Loan Parties’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior OfficerResponsible Officer of a Loan Party. Whenever any payment, certificate, notice or knowledge that other delivery shall be stated to be due on a Senior Officer would have obtained if he day other than a Business Day, the due date for such payment or she had engaged delivery shall be extended to the next succeeding Business Day, and such extension of time shall in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term such case be included in the Secured Notes Indenture and computation of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of any LIBOR Loan to be made in the event of any ambiguitynext calendar month, inconsistency or conflict between such payment shall be made on the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectimmediately preceding Business Day.
Appears in 1 contract
Sources: Credit Agreement (Clean Harbors Inc)
Certain Matters of Construction. (a) Except as otherwise set forth in Annex G, any accounting term used in the Agreement or the other Loan Documents shall have, unless otherwise specifically provided therein, the meaning customarily given such term in accordance with GAAP.
(b) All other undefined terms contained in this Agreement or the other Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of New York to the extent the same are used or defined therein.
(c) The terms words “herein,” “hereof,” and “hereunder” and or other words of similar import refer to this Agreement as a whole whole, including the annexes, exhibits and schedules hereto, as the same may from time to time be amended, modified or supplemented, and not to any particular section, paragraph subsection or subdivision. Any pronoun used clause contained in this Agreement.
(d) For purposes of this Agreement and the other Loan Documents, the following additional rules of construction shall be deemed to cover all genders. In apply: (i) wherever from the computation of periods of time from a specified date to a later specified datecontext it appears appropriate, “from” means “from each term stated in either the singular or plural shall include the singular and including,” the plural, and “to” pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and “until” each mean “to but excluding.” The terms the neuter; (ii) the term “including” shall not be limiting or exclusive, unless specifically indicated to the contrary; (iii) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; and (iv) all references to any instruments or agreements, including references to any of the Loan Documents, shall include any and all modifications or amendments thereto and any and all restatements, extensions or renewals thereof. CASH MANAGEMENT SYSTEM1 The Borrower agrees to establish, and to maintain until the Termination Date, the cash management system described below:
(1) Neither the Borrower nor any of its Domestic Subsidiaries shall maintain any deposit, checking, operating or other Deposit Account except for those accounts of the Borrower and its Domestic Subsidiaries identified in Schedule 3.20; provided, that Schedule 3.20 may be amended from time to time to reflect additional accounts as permitted pursuant to Section 6.17.
(2) Subject to paragraph 3 of this Annex B, commencing on the Effective Date and continuing until the Termination Date, the Borrower shall deposit or, if directed by the Agent, cause to be deposited directly, in either case on the date of receipt thereof, all cash, checks, notes, drafts or other similar items of payment relating to or constituting payments made in respect of any and all other Collateral into a Restricted Account. Within one Business Day after any such deposit, the Borrower shall notify the Agent as to the amount of such deposit.
(3) The Borrower shall establish and maintain the Deposit Account designated as the “includeBlocked Account” on Attachment I hereto (such account, the “Blocked Account”), and shall mean cause the bank at which such account is maintained to enter into an account control agreement (the “Blocked Account Agreement”) with the Agent and the Borrower, in form and substance acceptable to the Agent. Such Blocked Account Agreement shall provide, among other things, that (a) such bank executing such agreement has no rights of setoff or recoupment or any other claim against such Blocked Account, other than for payment of its service fees and other charges directly related to the administration of such account and for reimbursement of returned checks for which credit had been given to such Blocked Account (or such Blocked Account Agreement contains other terms limiting such bank’s setoff or recoupment rights reasonably acceptable to the Agent), and (b) such bank agrees, upon notice from Agent, (i) subject to any right of set-off agreed to by the Agent under clause (a) above, to sweep on a daily basis all amounts received in the Blocked Account to the Collection Account, and (ii) in any event, to take direction in respect of the Blocked Account, including, without limitation” and, for purposes of each Loan Documentdeposits into and withdrawals from the Blocked Account, solely from the Agent. Commencing on the Closing Date and continuing until the Termination Date, the parties agree that Borrower shall cause SFC to deposit or transfer directly to the rule Blocked Account all dividends or other distributions for the account of ejusdem generis the Borrower and all servicing fees, loans or proceeds from the sale of Accounts by the Borrower to SFC pursuant to the Receivables Funding Documents. In no event shall not any collections on Accounts sold by the Borrower to SFC be applicable to limit deposited into the Collection Account or any provision. Section titles appear as a matter deposit or securities account of convenience the Borrower, and all such collections shall be collected only and shall not affect the interpretation of any Loan Document. in 1 All references to Domestic Subsidiaries in this Annex B shall exclude SFC. accordance with the terms and conditions of the Receivables Funding Documents. Commencing on the Closing Date and continuing until the Termination Date, the Borrower shall cause SFC to transfer on a daily basis to the Borrower as a dividend or as an unsecured loan all funds in any bank account maintained by SFC in excess of funds immediately needed by SFC to pay its expenses incurred in the ordinary course of business, such transfer to be made to the Blocked Account.
(4) The Borrower shall cause all Deposit Accounts of the Borrower or any Domestic Subsidiary thereof (other than (i) the Mex Bank of America Account, (ii) the Blocked Account, (iii) any Deposit Account which is utilized solely as a disbursement account to pay payroll or as an account for qualified deferred compensation plans; or (iv) any other Deposit Account agreed to by Agent in its sole discretion) (any such account, a “Restricted Account”) to be subject to a restricted account agreement, in form and substance acceptable to the Agent (a “Restricted Account Agreement”), by and among the bank at which such account is maintained, the Agent, and the Borrower or such Domestic Subsidiary, as applicable. Such Restricted Account Agreement shall provide, among other things, that (a) laws include such bank executing such agreement has no rights of setoff or recoupment or any other claim against such Restricted Account, other than for payment of its service fees and other charges directly related to the administration of such account and for reimbursement of returned checks for which credit had been given to such Restricted Account (or such Restricted Account Agreement contains other terms limiting such bank’s setoff or recoupment rights reasonably acceptable to the Agent), and (b) such bank agrees (i) if requested by the Agent, but subject to any right of set-off agreed to by the Agent under clause (a) above, to sweep on a daily basis all related regulationsamounts received in the Restricted Account to the Collection Account, interpretationsand (ii) in any event, supplementsupon notice from the Agent, amendments to take direction in respect of the Restricted Account, including, without limitation, deposits into and successor provisionswithdrawals from the Restricted Account, solely from the Agent; provided that, for the avoidance of doubt, Agent may deliver such a request under the foregoing clause (b) as and when permitted under the Credit Agreement (including without limitation Section 8.2) and the Loan Documents.
(5) At any time: (a) Net Borrowing Availability is less than or equal to $20,000,000, or (b) upon Agent’s election, a Default or Event of Default has occurred and is continuing, amounts outstanding under the Revolving Credit Loan shall be reduced through daily sweeps on each Business Day, by wire transfer, of the monies deposited into the Blocked Account as provided in this Annex B. The Borrower acknowledges that it shall have no right to gain access to any of the moneys in the Blocked Account or the Collection Account.
(6) The Borrower hereby designates the Restricted Accounts of Borrower identified as the “Disbursement Accounts” on Attachment I (the “Disbursement Accounts”) as the Restricted Accounts into which the Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swing Line Advances made to the Borrower pursuant to Section 1.1 for use solely in accordance with the provisions of Section 1.3. All of the Disbursement Accounts as of the Effective Date are listed in Attachment I hereto.
(7) So long as no Default or Event of Default has occurred and is continuing, the Borrower may, after giving five (5) day’s prior written notice to the Agent, amend Attachment I hereto to add or replace a Restricted Account or Disbursement Account; provided, that within 30 days after the opening of such account, the Borrower or the relevant Domestic Subsidiary, as applicable, and such bank shall have executed and delivered to the Agent a Restricted Account Agreement. Notwithstanding the foregoing, Attachment I hereto may not be amended at any time Net Borrowing Availability is less than or equal to $20,000,000 unless (a) the Agent shall have consented to such amendment, and (b) at the time of the opening of such account, the Borrower and such bank shall have executed and delivered to the Agent a Restricted Account Agreement. The Borrower shall, or shall cause each of its Domestic Subsidiaries to, as applicable, close any of its accounts (and establish replacement accounts in accordance with the foregoing sentence) within 30 days of notice from the Agent that the creditworthiness of the bank holding such accounts is no longer acceptable in the Agent’s sole judgment or, with respect to a bank which is a party to the Blocked Account Agreement or one or more Restricted Account Agreements, such bank has defaulted in its obligations under any such Blocked Account Agreement or Restricted Account Agreement, as applicable. Each of the Blocked Account and the Restricted Accounts shall be a cash collateral account with all cash, checks and other similar items of payment in such accounts securing payment of the Obligations, and in which the Borrower shall have granted a first priority perfected Lien to the Agent for the benefit of the Lenders pursuant to a Security Agreement.
(8) All amounts deposited in the Collection Account shall be deemed received by the Agent in accordance with the terms of Section 1.8 and shall be applied (and allocated) by the Agent in accordance with the terms of Section 1.8. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(9) The Borrower hereby constitutes and irrevocably appoints the Agent its true and lawful attorney, with full power of substitution, to demand, collect, receive and ▇▇▇ for all amounts which may become due or payable under the Blocked Account or any Restricted Account, and to execute all withdrawal receipts or other orders for the Borrower, in its own name or in the Borrower’s name or otherwise, which the Agent deems necessary or appropriate to protect and preserve its right, title and interest in such accounts, in each case consistent with the exercise of its rights and remedies under Credit Agreement and the other Loan Documents (including without limitation the Power of Attorney executed by Borrower in connection with the Borrower Security Agreement).
(10) Upon the request of the Agent, the Borrower shall forward to the Agent, on a daily basis, evidence of the deposit of all items of payment received by the Borrower into the Blocked Account, any Restricted Account or the Collection Account and copies of all such checks and other items, together with a statement showing the application of those items relating to payments on Collateral and a collection report with regard thereto in form and substance satisfactory to the Agent.
(11) Other than any securities accounts utilized solely for qualified deferred compensation plans in accordance with, and subject to the limitations contained in, Section 6.2(d), the Borrower shall cause, and shall cause each of its Domestic Subsidiaries to cause, all securities accounts of the Borrower or any Domestic Subsidiary thereof to be subject to a Control Agreement between Agent, the relevant securities intermediary and the Borrower or such Domestic Subsidiary, as applicable.
(12) Notwithstanding anything herein to the contrary, and without limiting Section 2 of this Annex B, at any time that a Default or Event of Default exists due to a breach of any of the financial covenants set forth in Annex G, or an Event of Default exists under Section 8.1(a) or Section 8.1(f)(ii), (a) the Borrower shall cause all remittances, receipts and other sums of any kind payable to the Borrower or any Domestic Subsidiary thereof (other than the Excluded Assets or any proceeds thereof) to be directed to the Collection Account, (b) any documentsuch remittances, instrument receipts or agreement include other sums received by any amendmentssuch company shall be held in trust for the account of the Agent and shall be promptly deposited into the Collection Account, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits Borrower and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers its Domestic Subsidiaries shall have no rights to such funds once deposited into the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectCollection Account.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; or (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative any Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such Person. All calculations of ValueUnless the context otherwise requires, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of the US Borrowing Base Capacity, the Canadian Borrowing Capacity, the Aggregate Revolver Borrowing Capacity, the Term Loan Borrowing Capacity, the Revolver Excess Availability, the Aggregate Revolver Excess Availability, and financial covenantsthe Fixed Charge[ Coverage Ratio and the Interest] Coverage Ratio) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. The US Borrowing Base Capacity, the Canadian Borrowing Capacity, the Aggregate Revolver Borrowing Capacity and the Term Loan Borrowing Capacity calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.The Borrowers
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Birks Group Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include include, unless otherwise specified herein, any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Collateral Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base Base, Excess Availability and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base and Excess Availability calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative each Collateral Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Collateral Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer. Whenever any payment, certificate, notice or knowledge that other delivery shall be stated to be due on a Senior Officer would have obtained if he day other than a Business Day, the due date for such payment or she had engaged delivery shall be extended to the next succeeding Business Day, and such extension of time shall in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term such case be included in the Secured Notes Indenture and computation of payment of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of any LIBOR Loan to be made in the event of any ambiguitynext calendar month, inconsistency or conflict between such payment shall be made on the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectimmediately preceding Business Day.
Appears in 1 contract
Sources: Loan Agreement (Solo Cup CO)
Certain Matters of Construction. (a) Unless otherwise specifically provided herein, any accounting term used in this Agreement shall have the meaning customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing.
(b) All other undefined terms contained in any of the Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of California to the extent the same are used or defined therein. Unless otherwise specified, reference in this Agreement or any of the Appendices to a Section, subsection or clause refer to such Section, subsection or clause as contained in this Agreement. The terms words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, paragraph subsection or subdivision. Any pronoun used clause contained in this Agreement or any such Annex, Exhibit or Schedule.
(c) Wherever from the context it appears appropriate, each term stated in either the singular or plural shall be deemed to cover all include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. In the computation of periods of time from a specified date to a later specified dateThe words “including”, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “includingincludes” and “include” shall mean be deemed to be followed by the words “including, without limitation;” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to Persons include their respective successors and assigns (a) laws include all related regulations, interpretations, supplements, amendments to the extent and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (only to the extent permitted by the Loan Documents); (c) any section meanor, unless in the context otherwise requirescase of governmental Persons, a section of this Agreement; (d) any exhibits or schedules mean, unless Persons succeeding to the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion relevant functions of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, Persons; and all determinations (including calculations of Borrowing Base references to statutes and financial covenants) made from time to time under the Loan Documents related regulations shall be made in light include any amendments of the circumstances existing at such timesame and any successor statutes and regulations. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory Whenever any provision in any Loan Document refers to the Administrative Agent knowledge (and not necessarily calculated in accordance with GAAP). Borrowers shall or an analogous phrase) of Borrower, such words are intended to signify that Borrower has actual knowledge or awareness of a particular fact or circumstance or that Borrower, if it had exercised reasonable diligence, would have the burden of establishing any alleged negligence, misconduct known or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason been aware of such party having, fact or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectcircumstance.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of references to Value, Borrowing Base components, Revolver Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined All covenants under Section 10.2 shall be given independent effect so that if a particular action or condition is not permitted by reference to a defined term in the Secured Notes Indenture and in the event any of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenturesuch covenants, the defined term in fact that it would be permitted by an exception to, or be otherwise within the Existing Indenture limitations of, another covenant, shall supersede and control for so long as not avoid the occurrence of an Event of Default or Default if such Existing Indenture action is in effecttaken or condition exists.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (ArcLight Clean Transition Corp.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All Unless otherwise provided herein or in any other Loan Document, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1the Borrower Loan Agreement; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or Bank, any Lender or Bank of America mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Guarantors shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or Bank, any Lender or Bank of America under any Loan DocumentsDocuments to which Guarantors are a party. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Guarantor’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. Any use of the term “Equipment” herein shall be deemed to refer equally to all Equipment and components thereof and each Equipment and component thereof, it being the understanding of the parties that any reference to “Equipment” shall not be deemed to prejudice any rights or remedies of Lender, or Obligations of Borrower, hereunder with respect to any Equipment or component thereof. Defined terms used herein that include the word “Equipment” shall have the meanings ascribed herein irrespective of whether the goods or other property referenced or otherwise included in such defined terms constitutes “Equipment” as such term is defined pursuant to Article 9 of the Uniform Commercial Code or some other type of collateral category thereunder. It is the intention of the parties hereto that the Equipment shall consist solely of personal property and that it shall not constitute Fixtures. The parties acknowledge and agree that the Equipment are and shall remain removable from, and not essential to, the premises where the Equipment are located. All references to Sections herein, unless otherwise stated, shall refer to Sections of this Master Agreement. Lender may, but shall not be obligated in any way to, maintain one or more accounts or records on the books or systems of Lender in which will be recorded the Loans, interest applicable thereto, any and all other payment Obligations of Borrower under this Master Agreement and other Transaction Documents, and other appropriate debits and credits as provided herein. The accounts or records maintained by L▇▇▇▇▇ shall be conclusive evidence, absent manifest error, of the amount of Advances, interest and related information. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. The terms “herein,” “hereof,” or “hereunder” and other words of similar import or like terms shall be deemed to refer to this Master Agreement as a whole and not to any a particular section. Whenever terms such as “include” or “including” is used in this Master Agreement or in any Transaction Document, paragraph they mean “include” or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “includingas the case may be, without limitationlimiting the generality of any description or word preceding such term. Unless otherwise expressly set forth to the contrary, whenever the expression “satisfactory to Lender,” and“in L▇▇▇▇▇’s judgment” or similar words are used or Lender is granted the contractual or right to choose between alternatives or to express its opinion, for purposes the satisfaction, judgment, choices and opinions are to be made in the sole discretion of each Loan Lender. Except as otherwise expressly provided herein, any reference in or to this Master Agreement (including any Appendix, Schedule, or Exhibit hereto), any other Transaction Document, or any other agreement, instrument, or other document shall be construed to refer to the parties agree that referenced agreement, instrument, or document as assigned, amended, restated, supplemented, or otherwise modified from time to time, in each case in accordance with the rule express terms of ejusdem generis shall not be applicable this Master Agreement and any other relevant Transaction Document unless such reference is expressly limited to limit any provisionrefer to such agreement, instrument, or other document “as in effect on” a specified date. Section titles appear as a matter of The captions or headings in each Transaction Document are made for convenience and general reference only and shall not affect be construed to describe, define, or limit the interpretation scope or intent of any Loan the provisions of such Transaction Document. All references to (a) laws include all related regulationsAbsent manifest error, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (the records of Lender shall be conclusive evidence with respect to the extent permitted matters governed by the Loan Transaction Documents); (c) any section mean. As used herein, unless all masculine pronouns shall include the context otherwise requires, a section of this Agreement; (d) any exhibits feminine or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwiseneuter, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under singular terms the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculationplural form thereof, and otherwise satisfactory to vice versa. The exhibits annexed hereto are incorporated herein by this reference and made a part hereof as if contained in the Administrative Agent (body of this Master Agreement. Both L▇▇▇▇▇ and not necessarily calculated in accordance with GAAP). Borrowers shall B▇▇▇▇▇▇▇ acknowledge that this Master Agreement and the other Transaction Documents have been fully negotiated between the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents parties and agree that it shall be construed without regard to any presumptions against any the party by reason of such party having, or being deemed causing the same to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectbe prepared.
Appears in 1 contract
Sources: Master Loan and Security Agreement (ProPetro Holding Corp.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1Appropriate Notice Office; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender shall mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date on which such Default or an Event of Default occurs to the date on which such Default or an Event of Default is waived in writing by Administrative Agent (acting with the consent or at the direction of Lenders or Required Lenders, as applicable) pursuant to this Agreement or cured. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms in this Agreement are defined by reference Any Lien referred to a defined term in the Secured Notes Indenture and Agreement or any of the other Loan Documents as having been created in favor of Administrative Agent, any agreement entered into by Administrative Agent pursuant to the event Agreement or any of the other Loan Documents, any ambiguitypayment made by or to, inconsistency or conflict between funds received by, Administrative Agent pursuant to or as contemplated by any of the Existing Indenture Loan Documents, or any other act taken or omitted to be taken by Administrative Agent shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted for the benefit or account of Administrative Agent and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectother Secured Parties.
Appears in 1 contract
Sources: Loan and Security Agreement (Spectrum Brands, Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means the time of day at Administrative Agent’s notice address under Section 15.3.1in New York, New York; or (g) except as expressly provideddiscretion (but not, discretion for the avoidance of Administrative Agentdoubt, any Issuing Bank Permitted Discretion) of Agent or any Lender mean means the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Loan, Security and Guarantee Agreement (AutoWeb, Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement (including this Agreement) include any amendments, restatements, supplements, waivers and other modifications, supplements, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of the Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by the Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would should have obtained if he or she had engaged in the good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Sources: First Amendment Agreement (United Natural Foods Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.113.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such Person. The recitals and preamble hereto are incorporated by reference and shall be deemed an integral part of this Agreement. All calculations of Valuevalue, Borrowing Base components, Loans, Letters fundings of Credit, Loans and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. The rules of construction and interpretation included in this Section apply to all Loan Documents. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation”, “or” andincludes “and/or”, for purposes of each Loan Document, the parties agree that and the rule of ejusdem generis shall does not be applicable to limit any provisionapply. Section titles appear as a matter of convenience only and shall will not affect the interpretation of any a Loan Document. All references Reference to any (a) laws include law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendmentsamendment, restatementsextension, supplementssupplement, waivers waiver, replacement and other modifications, extensions or renewals modification thereto (to the extent permitted by the Loan DocumentsDocuments and except as otherwise specified herein); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreementthe applicable document; (d) any exhibits exhibit or schedules meanschedule means, unless the context otherwise requires, exhibits and schedules attached heretoan exhibit or schedule to the applicable document, which are hereby is thereby incorporated by reference; (e) any Person include such Person’s includes its permitted successors and assigns; or (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly providedunless otherwise set forth herein, discretion or satisfaction of Administrative Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such PersonPerson exercised from time to time. All calculations of Any references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations any determination (including calculations calculation of Borrowing Base and financial covenants) made from time to time by Obligors under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender Indemnitee under any a Loan DocumentsDocument. No provision of any a Loan Documents Document shall be construed against any a party by reason of such party it having, or being deemed to have, drafted the provision. Reference to a Borroweran Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference Unless otherwise specified, all references herein to a defined term in times of day shall be references to Central time (daylight or standard, as applicable). References herein to the Secured Notes Indenture consolidated financial results of Parent, Obligors or Borrowers and in Subsidiaries shall not include the event financial results of any ambiguityExcluded Subsidiary unless explicitly stated otherwise (including, inconsistency or conflict between without limitation, pursuant to clause (d) of the Existing Indenture definition of EBITDA), provided that certain reporting delivered under Section 10.1.1(a) through (c) may include the results of Excluded Subsidiaries if the consolidating and the 2026 Notes Indenture, the defined term other information is also provided in the Existing Indenture shall supersede and control for so long as compliance with such Existing Indenture is in effectSection.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Solaris Energy Infrastructure, Inc.)
Certain Matters of Construction. The terms “herein,” ”, “hereof,” ”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” ”, and “to” and “until” each mean “to but excluding.” ”. The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s includes successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1in the Pacific Time Zone; or (g) except as expressly providedotherwise set forth herein, discretion of Administrative Agent, any Issuing Bank or any Lender mean means the sole and absolute reasonable discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Revolver Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” ”, “hereof,” ”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” ”, and “to” and “until” each mean “to but excluding.”. The term “or” shall not be exclusive. The terms “including”, “includes” and “include” shall mean “including, without limitation” and, for purposes of each Loan Credit Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. All references to “day”, “week” or “month” shall be references to a calendar day, week or month unless otherwise stated. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Credit Document. All Unless otherwise expressly stated or qualified herein, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatementswaivers, supplements, waivers supplements and other modifications, extensions or renewals from time to time (to the extent permitted by the Loan Credit Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated herein by reference; (e) any Person include successors and permitted assigns of such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1Eastern time; or (g) except as expressly provided, the discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of or references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, Dollars unless expressly provided otherwiseotherwise and, and unless the context otherwise requires, all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Credit Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise made in a manner satisfactory to the Administrative Agent in its Permitted Discretion (and not necessarily calculated in accordance with GAAP). Borrowers Obligors shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Credit Documents. No provision of any Loan Credit Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to the best knowledge of” a Borrower’s “knowledge” Borrower or other Obligor or words of similar concept import are used in any Credit Documents, such phrase means actual knowledge of a Senior OfficerOfficer of such Borrower or other Obligor (as applicable), or knowledge that a Senior Officer of such Borrower or other Obligor (as applicable) would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes IndentureUnless otherwise expressly stated herein, the defined word term in “intercompany” shall relate to matters that are intercompany between or among the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectapplicable Consolidated Parties.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Certain Matters of Construction. The terms For purposes of this Agreement, except as specified otherwise or the context otherwise requires, the words “hereof”, “herein,” “hereof,” ”, “hereunder” and other words of similar import will refer to this Agreement as a whole and not to any particular sectionSection or provision of this Agreement, paragraph and reference to a particular Section of this Agreement will include all subsections thereof. The word “party” will refer to the Stockholders, the Accredited Optionholders, the Warrantholders, the Company, the Buyer or subdivisionthe Parent. The word “including” means including without limitation. Definitions will be equally applicable to both the singular and plural forms of the terms defined, and references to the masculine, feminine or neuter gender will include each other gender. All references in this Agreement to any Section, Exhibit or Schedule will, unless otherwise specified, be deemed to be a reference to a Section, Exhibit or Schedule of or to this Agreement, in each case as such may be amended in accordance herewith, all of which are made a part of this Agreement. All references in this Agreement to monetary amounts will, unless otherwise specified, be to United States dollars. Any pronoun used Legal Requirement defined or referred to herein or in any agreement or instrument that is referred to herein shall include any modification, amendment or re-enactment thereof, and any Legal Requirement substituted therefor, in each case as of the time of inquiry, representation or covenant. Any reference to a Governmental Authority or statutory or regulatory provisions shall be deemed also to cover all gendersrefer to any successor thereto unless the context requires otherwise. In A reference to any agreement (including this Agreement) or Contract, is, unless otherwise specified, to the computation agreement or Contract as amended, modified, supplemented or replaced at the time of periods inquiry, representation or covenant. Although the same or similar subject matters may be addressed in different provisions of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Documentthis Agreement, the parties agree that intend that, except as reasonably apparent on the rule face of ejusdem generis shall the Agreement or as expressly provided in this Agreement, each such provision will be read separately, be given independent significance and not be applicable to limit construed as limiting any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section provision of this Agreement; Agreement (d) any exhibits whether or schedules meannot more general or more specific in scope, unless the context otherwise requires, exhibits and schedules attached hereto, which substance or content). References to a Person are hereby incorporated by reference; (e) any Person include such Person’s also to its successors and permitted assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.113.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of references to Value, Borrowing Base components, Revolver Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers The Loan Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s or a Loan Party’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” ", and the word "through" means "to and including". The terms “"including” " and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requiresindicates, a section of this Agreement; (d) any exhibits or schedules meanmeans, unless the context otherwise requiresindicates, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and permitted assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1in the Applicable Time; or (g) except as unless otherwise expressly providedprovided herein or in any Loan Document with respect to Permitted Discretion, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “'s "knowledge” " or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement are defined Agreement; and an Event of Default shall "continue" or be "continuing" until such Event of Default has been waived in writing by reference to Required Lenders. All covenants under Section 10.2 shall be given independent effect so that if a defined term particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant, shall not avoid the occurrence of an Event of Default or Default if such action is taken or condition exists. For purposes of any Collateral located in the Secured Notes Indenture Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the event Province of any ambiguityQuebec, inconsistency (a) "personal property" shall be deemed to include "movable property", (b) "real property" shall be deemed to include "immovable property", (c) "tangible property" shall be deemed to include "corporeal property", (d) "intangible property" shall be deemed to include "incorporeal property", (e) "security interest", "mortgage" and "lien" shall be deemed to include a "hypothec", "prior claim" and a "resolutory clause," (f) all references to filing, registering or conflict between recording under the Existing Indenture and UCC or the 2026 Notes IndenturePPSA shall be deemed to include publication under the Civil Code of Quebec, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.(g) all references to
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means the time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly providedunless otherwise specified herein, discretion of Administrative Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such Person. All calculations of references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference A reference to a Borrower’s Borrowers’ “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Loan and Security Agreement (American Vanguard Corp)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; or (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean means the sole and absolute discretion of such Person. All calculations of ValueUnless the context otherwise requires, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of the Term Loan Borrowing Base Capacity, Revolver Excess Availability and financial covenantsFixed Charge Coverage Ratio) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. The Term Loan Borrowing Base Capacity calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent Agents (and not necessarily calculated in accordance with GAAP). The Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank the Agents or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Borrower’s Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (i) “knowledgepersonal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property” and an “easement” shall be deemed to include a “servitude”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (vi) all references to filing, registering or recording under the PPSA or UCC shall be deemed to include publication under the Civil Code of Quebec, and all references to releasing any Lien shall be deemed to include a release, discharge and mainlevee of a hypothec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”, “right of setoff” or similar concept means actual knowledge expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (x) an “agent” shall be deemed to include a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect“mandatary”.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Birks & Mayors Inc.)
Certain Matters of Construction. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any addendums, exhibits or schedules mean, unless the context otherwise requires, addendums, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean Lender, unless otherwise qualified, means the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of Value, references to Facility Revolver Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Facility Revolver Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Facility Revolver Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference The term “written demand” shall be deemed to include a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined demand given by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effecte-mail.
Appears in 1 contract
Sources: Loan Agreement (Innovative Industrial Properties Inc)
Certain Matters of Construction. The terms Except where expressly stated otherwise in this Agreement, the following rules of interpretation apply to this Agreement: (a) unless the context otherwise requires, “hereineither” and “or” are not exclusive, and “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”; (b) “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and other words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation provision of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents)this Agreement; (c) any section mean, unless “date of this Agreement” refers to the context otherwise requires, a section date set forth in the initial caption of this Agreement; (d) any exhibits “extent” in the phrase “to the extent” means the degree to which a subject or schedules meanother thing extends, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by referencesuch phrase does not mean simply “if”; (e) the descriptive headings and table of contents included herein are included for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any provision hereof; (f) definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms; (g) references to an agreement, instrument or Law mean such agreement, instrument or Law as amended or otherwise supplemented or modified from time to time, including (in the case of agreements or instruments) by waiver or consent and (in the case of Laws) by formal guidance and regulations issued thereunder and successor Laws; (h) references to a Person include such Person’s are also to its permitted successors and assigns; (fi) time references to an “Article,” “Section,” “Exhibit” or “Schedule” refer to an Article or Section of, or an Exhibit or Schedule to, this Agreement; (j) references to “$” or otherwise to dollar amounts refer to the lawful currency of day mean time the United States of day at Administrative Agent’s notice address America; (k) references to a federal, state, local or foreign Law include any rules and regulations issued thereunder; (l) references to accounting terms used and not otherwise defined herein have the meaning assigned to them under Section 15.3.1GAAP; or and (gm) except as expressly provideda term that begins with an initial capital letter, discretion is not defined herein and reflects a different part of Administrative Agentspeech than a term that begins with an initial capital letter and is defined herein, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated interpreted in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such timea correlative manner. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms The language used in this Agreement are defined shall be deemed to be the language chosen by reference the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party. No summary of this Agreement prepared by any Party shall affect the meaning or interpretation of this Agreement. If any date on which a defined term Party is required to make a payment or a delivery pursuant to the terms hereof is not a Business Day, then such Party shall make such payment or delivery on the next succeeding Business Day. Each Disclosure Schedule will be deemed incorporated into this Agreement. Time shall be of the essence in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectthis Agreement.
Appears in 1 contract
Sources: Merger Agreement
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” " The terms “"including” " and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis EJUSDEM GENERIS shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s 's notice address under Section 15.3.1SECTION 14.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase "to a Borrower’s “the best of Borrowers' knowledge” " or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan DocumentDocument and the Borrower Materials, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan DocumentDocument and the Borrower Materials. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1in New York, New York, unless otherwise specified; (g) a number of days, such number shall refer to calendar days unless Business Days are specified; (h) any action being taken or given on or by a particular calendar day and such calendar day is not a Business Day, unless otherwise specified herein, shall be deemed to refer instead to the next Business Day or (gi) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such PersonPerson acting reasonably. All calculations of Value, Borrowing Base componentsvalue, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents and the Borrower Materials shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers The Borrower shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a the Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Key Energy Services Inc)
Certain Matters of Construction. The rules of construction and interpretation included in this Section apply to all Loan Documents. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation”, “or” andincludes “and/or”, for purposes of each Loan Document, the parties agree that and the rule of ejusdem generis shall does not be applicable to limit any provisionapply. Section titles appear as a matter of convenience only and shall will not affect the interpretation of any a Loan Document. All references Reference to any (a) laws include law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendmentsamendment, restatementsextension, supplementssupplement, waivers waiver, replacement and other modifications, extensions or renewals modification thereto (to the extent permitted by the Loan DocumentsDocuments and except as otherwise specified herein); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreementthe applicable document; (d) any exhibits exhibit or schedules meanschedule means, unless the context otherwise requires, exhibits and schedules attached heretoan exhibit or schedule to the applicable document, which are hereby is thereby incorporated by reference; (e) any Person include such Person’s includes its permitted successors and assigns; (f) time of day mean means the time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly providedunless otherwise set forth herein, discretion or satisfaction of Administrative Agent, any Issuing Bank the Collateral Agent or any Lender mean Required Lenders means the sole and absolute discretion of such PersonPerson exercised from time to time. All calculations of Value, Borrowing Base components, Any references to Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations any determination (including calculations calculation of Borrowing Base and financial covenants) made from time to time by Obligors under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender Indemnitee under any a Loan DocumentsDocument. No provision of any a Loan Documents Document shall be construed against any a party by reason of such party it having, or being deemed to have, drafted the provision. Reference to a Borroweran Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference References herein to a defined term in the Secured Notes Indenture consolidated financial results of Parent, Obligors or Borrower and in Subsidiaries shall not include the event financial results of any ambiguityExcluded Subsidiary unless explicitly stated otherwise (including, inconsistency or conflict between without limitation, pursuant to clause (d) of the Existing Indenture definition of EBITDA), provided that certain reporting delivered under Section 10.1.1(a) and (b) may include the 2026 Notes Indenture, results of Excluded Subsidiaries if the defined term consolidating and other information is also provided in the Existing Indenture shall supersede and control for so long as compliance with such Existing Indenture is in effectSection.
Appears in 1 contract
Sources: Credit Agreement (Solaris Energy Infrastructure, Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules meanmeans, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1in the Central time zone; or (g) except as expressly provided, discretion of Administrative Agent, any Collateral Agent, Documentation Agent, Issuing Bank or any Lender mean means the sole and absolute discretion of such Person. All calculations of Valuevalue, Borrowing Base components, fundings of Revolver Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Collateral Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Collateral Agent, Documentation Agent, Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a Borrower’s “the best of Borrowers’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” and the words “to” and “until” each mean means “to but excluding.” The section titles, table of contents and list of exhibits appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All references to statutes shall include all related rules and implementing regulations and any amendments of same and any successor statutes, rules and regulations; to any agreement, instrument or other documents (including any of the Loan Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms “thereof; to any Person (including, Administrative Agent, a Borrower, a Lender or BofA) shall mean and include the successors and permitted assigns of such Person; to ”including” and “include” shall be understood to mean “including, without limitation” (and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter general statement, which is followed by or referable to an enumeration of convenience only and shall not affect the interpretation of any Loan Document. All references specific matters to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (matters similar to the extent permitted by the Loan Documentsmatters specifically mentioned); (c) any section meanto the time of day shall mean the time of day on the day in question in New York, New York, unless the context otherwise requires, a section of expressly provided in this Agreement; (d) any exhibits or schedules mean, unless to the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion “discretion” of Administrative Agent, any Issuing Bank Agent or any a Lender shall mean the sole and absolute reasonable discretion of such Person. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing by Administrative Agent (acting with the consent or at the direction of the Lenders or the Required Lenders, as applicable) pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by Administrative Agent (acting with the consent or at the direction of the Lenders or the Required Lenders, as applicable). All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein Value shall be denominated in Dollars, unless expressly provided otherwise, all Loans shall be funded in Dollars and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents Obligations shall be made repaid in light of Dollars. Whenever the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory phrase “to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden best of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “Borrowers’ knowledge” or words of similar concept means import relating to the knowledge or the awareness of a Borrower are used in this Agreement or other Loan Documents, such phrase shall mean and refer to the actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Insight Health Services Holdings Corp)
Certain Matters of Construction. The terms “herein,” ”, “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Each reference to a Section, an Exhibit or a Schedule shall be deemed to refer to a Section, an Exhibit or a Schedule, as applicable, of this Agreement unless otherwise specified. The terms “including” and other words of similar import refer to “including, but not limited” unless otherwise specified. Each reference to a Section, an Exhibit or a Schedule shall be deemed to refer to a Section, an Exhibit or a Schedule, as applicable, of this Agreement unless otherwise specified. Any pronoun used shall be deemed to cover all genders. In Wherever appropriate in the computation context, terms used herein in the singular also include the plural and vice versa. All references to statutes (including the UCC) and related regulations shall include any amendments of periods of time from a specified date same and any successor statutes and regulations. Unless otherwise provided, all references to a later specified dateany instruments or agreements, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes references to this Agreement or any of each Loan Documentthe Other Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof to the parties agree that the rule of ejusdem generis shall extent not be applicable to limit prohibited by this Agreement or any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Other Document. All references to The amount outstanding under any Letter of Credit shall mean, at any date of determination, (a) laws include the maximum aggregate amount available for drawing thereunder under any and all related regulationscircumstances, interpretations, supplements, amendments and successor provisions; plus (b) any documentthe aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit. Unless otherwise provided Dollar ($) baskets set forth in the representations and warranty, instrument or agreement include any amendmentscovenants and event of default provisions of this Agreement (an other similar baskets) are calculated as of each date of measurement by the Dollar Equivalents thereof as of such date of measurement. Once an Event of Default occurs, restatements, supplements, waivers such Event of Default shall remain in existence and be continuing unless waived in writing by the applicable Lenders and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated Persons in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectSection 17.2.
Appears in 1 contract
Sources: Loan and Security Agreement (Winnebago Industries Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” “through” means “through and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person, except if such discretion is referred to as “discretion, reasonably exercised” or “reasonable discretion” the standard for the exercise of discretion will be based from the perspective of an asset based lender. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Obligated Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a the best of Borrower’s ’ knowledge”, “to the best of Obligated Parties’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms Any Event of Default shall be deemed to be continuing until waived in this Agreement are defined writing by reference to a defined term in the Secured Notes Indenture Agent and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectRequired Lenders.
Appears in 1 contract
Certain Matters of Construction. The rules of construction and interpretation included in this Section apply to all Loan Documents. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all gendersgenders and the neutral. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” " The terms “"including” " and “"include” shall " mean “"including, without limitation” and" "or" includes "and/or", for purposes of each Loan Document, the parties agree that and the rule of ejusdem generis shall does not be applicable to limit any provisionapply. Section titles appear as a matter of convenience only and shall will not affect the interpretation of any a Loan Document. All references Reference to any (a) laws include law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendmentsamendment, restatementsextension, supplementssupplement, waivers waiver, replacement and other modifications, extensions or renewals modification thereto (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreementthe applicable document; (d) any exhibits exhibit or schedules meanschedule means, unless the context otherwise requires, exhibits and schedules attached heretoan exhibit or schedule to the applicable document, which are hereby is thereby incorporated by reference; (e) any Person include such Person’s includes its permitted successors and assigns; (f) time of day mean means the time of day at Administrative Agent’s notice address under Section 15.3.1; in the Applicable Time Zone or (g) except as expressly provided, discretion or satisfaction of Administrative Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such PersonPerson exercised from time to time. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations Any determination (including calculations calculation of Borrowing Base and financial covenants) made from time to time by Obligors under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender Indemnitee under any a Loan DocumentsDocument. No provision of any a Loan Documents Document shall be construed against any a party by reason of such party it having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” an Obligor'▇ "▇▇▇▇ledge" or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms A Default or an Event of Default shall be deemed to exist and shall “continue” or be “continuing” at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing in accordance with this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement are defined or the applicable Loan Document. All covenants under Section 10.2 shall be given independent effect so that if a particular action or condition is not permitted by reference to a defined term in the Secured Notes Indenture and in the event any of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenturesuch covenants, the defined term in fact that it would be permitted by an exception to, or be otherwise within the Existing Indenture limitations of, another covenant, shall supersede and control for so long as not avoid the occurrence of an Event of Default or Default if such Existing Indenture action is in effecttaken or condition exists.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. References in this Agreement to “Preamble”, “Sections”, “Schedules” or “Exhibits” shall be to the Preamble, Sections, Schedules or Exhibits of or to this Agreement unless otherwise specifically provided. All references in this Agreement or any other Loan Document to (a) laws statutes shall include all related amendments of same and implementing regulations and any successor or replacement statutes and regulations, interpretations, supplements, amendments and successor provisions; (b) to any document, instrument or agreement (including any of the Loan Documents) shall include any amendments, and all modifications and supplements thereto and any and all restatements, supplements, waivers and other modifications, extensions or renewals (thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the Loan Documents)terms hereof and thereof; (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) to any Person include means and includes the successors and permitted assigns of such Person’s successors ; to “include,” “includes” and assigns“including” shall be deemed to be followed by the phrase “without limitation”; (f) or to the time of day mean means the time of day at Administrative Agent’s notice address under Section 15.3.1; on the day in question in Chicago, Illinois, unless otherwise expressly provided in such Loan Document. Unless the context of this Agreement or (g) any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural and the term “or” has, except as expressly providedwhere otherwise indicated, the inclusive meaning represented by the phrase “and/or.” All references to discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean means, unless otherwise provided herein, the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, references to Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Borrower shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower▇▇▇▇▇▇▇▇’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Loan Agreement (Chicago Atlantic Real Estate Finance, Inc.)
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” " The terms “"including” " and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis EJUSDEM GENERIS shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean means time of day at Administrative Agent’s 's notice address under Section 15.3.1SECTION 14.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Borrower shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase "to a the best of Borrower’s “'s knowledge” " or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Sources: Loan and Security Agreement (Hines Horticulture Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1means Pacific time; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent in its Permitted Discretion (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms Any Event of Default shall be deemed to be continuing until waived in this Agreement are defined writing by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectRequired Lenders.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; or (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative any Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such Person. All calculations of ValueUnless the context otherwise requires, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of the US Borrowing Base Capacity, the Canadian Borrowing Capacity, the Aggregate Revolver Borrowing Capacity, the Term Loan Borrowing Capacity, the Revolver Excess Availability, the Aggregate Revolver Excess Availability, the Fixed Charge Coverage Ratio and financial covenantsthe Interest Coverage Ratio) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. The US Borrowing Base Capacity, the Canadian Borrowing Capacity, the Aggregate Revolver Borrowing Capacity and the Term Loan Borrowing Capacity calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). The Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative any Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to a Borrower’s “knowledge” which the interpretation or similar concept means actual knowledge construction of a Senior Officer, Loan Document may be subject to the laws of the Province of Quebec or knowledge that a Senior Officer would have obtained if he court or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term tribunal exercising jurisdiction in the Secured Notes Indenture and in the event Province of any ambiguityQuebec, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture (i) “personal property” shall supersede and control for so long as such Existing Indenture is in effect.be deemed to include “movable
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Birks Group Inc.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All Unless otherwise provided herein or in any other Loan Document, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Borrower shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a the best of Borrower’s “knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” " The terms “"including” " and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan DocumentDocument and the Borrower Materials, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan DocumentDocument and the Borrower Materials. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Collateral Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “"knowledge” " or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.
Appears in 1 contract
Certain Matters of Construction. Any use of the term “Equipment” herein shall be deemed to refer equally to all Equipment and components thereof and each Equipment and component thereof, it being the understanding of the parties that any reference to “Equipment” shall not be deemed to prejudice any rights or remedies of Lender, or Obligations of Borrower, hereunder with respect to any Equipment or component thereof. Defined terms used herein that include the word "Equipment" shall have the meanings ascribed herein irrespective of whether the goods or other property referenced or otherwise included in such defined terms constitutes "Equipment" as such term is defined pursuant to Article 9 of the Uniform Commercial Code or some other type of collateral category thereunder. It is the intention of the parties hereto that the Equipment shall consist solely of personal property and that it shall not constitute Fixtures. The parties acknowledge and agree that the Equipment are and shall remain removable from, and not essential to, the premises where the Equipment are located. All references to Sections herein, unless otherwise stated, shall refer to Sections of this Master Agreement. Lender may, but shall not be obligated in any way, to maintain one or more accounts or records on the books or systems of Lender in which will be recorded the Loans, interest applicable thereto, any and all other payment Obligations of Borrower under this Agreement and other Transaction Documents, and other appropriate debits and credits as provided herein. The accounts or records maintained by Lender shall be conclusive evidence, absent manifest error, of the amount of Advances, interest and related information. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. The terms “"herein,” “hereof,” “" or "hereunder” and other words of similar import " or like terms shall be deemed to refer to this Master Agreement as a whole and not to any a particular section. Whenever terms such as "include" or "including" is used in this Master Agreement or in any Transaction Document, paragraph they mean "include" or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and "including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including" as the case may be, without limitation” and, for purposes limiting the generality of each Loan Documentany description or word preceding such term. Whenever the expression "satisfactory to Lender," "in Lender's judgment" or similar words are used or Lender is granted the contractual or right to choose between alternatives or to express its opinion, the parties agree that satisfaction, judgment, choices and opinions are to be made in the rule sole discretion of ejusdem generis shall not be applicable to limit any provisionLender. Section titles appear as a matter of The captions or headings in each Transaction Document are made for convenience and general reference only and shall not affect be construed to describe, define, or limit the interpretation scope or intent of any Loan the provisions of such Transaction Document. All references to (a) laws include all related regulationsAbsent manifest error, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (the records of Lender shall be conclusive evidence with respect to the extent permitted matters governed by the Loan Transaction Documents); (c) any section mean. As used herein, unless all masculine pronouns shall include the context otherwise requires, a section of this Agreement; (d) any exhibits feminine or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwiseneuter, and all determinations (including calculations singular terms the plural form thereof, and vice versa. The exhibits annexed hereto are incorporated herein by this reference and made a part hereof as if contained in the body of Borrowing Base this Master Agreement. Nothing in any Transaction Document is deemed to limit Lender’s rights or Borrower’s Obligations hereunder or under any other Transaction Document and, in order to clarify the intention of the parties, each of Borrower and financial covenants) made from time to time under the Loan Documents Lender expressly agrees that such documents shall be made interpreted collectively in light of the circumstances existing at such timemanner that imposes the maximum restriction on Borrower and grants to Lender the maximum benefits hereunder and thereunder. Borrowing Base calculations shall be consistent with historical methods of valuation Both Lender and calculation, Borrower acknowledge that this Master Agreement and otherwise satisfactory to the Administrative Agent (other Transaction Documents have been fully negotiated between the parties and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents agree that it shall be construed without regard to any presumptions against any the party by reason of such party having, or being deemed causing the same to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectbe prepared.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Nextier Oilfield Solutions Inc.)
Certain Matters of Construction. The terms “"herein,” “" "hereof,” “" "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” " and “"to” " and “"until” " each mean “"to but excluding.” " The terms “"including” " and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s 's notice address under Section 15.3.114.3.1 (i.e., Central time); or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase "to a Borrower’s “the best of Borrowers' knowledge” " or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Sources: Loan and Security Agreement (Frozen Food Express Industries Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,”, “through” means “through and including,” and “to” and “until” each mean “to but excluding.” ,”. The terms “including” and “include” shall mean “including, without limitation,” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section Section mean, unless the context otherwise requires, a section Section of this Agreement; (d) any exhibits or mean, unless the context otherwise requires, exhibits attached hereto, and any schedules mean, unless the context otherwise requires, exhibits and schedules attached heretothe Disclosure Schedules, all of which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly providedunless otherwise specified, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Obligated Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a the best of Borrower’s knowledge”, “to the best of Obligated Parties’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms Any Event of Default shall be deemed to be continuing until waived in this Agreement are defined writing by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture Agent and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectrequisite Lenders.
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” “through” means “through and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day shall mean the time of day at Administrative Agent’s notice address under Section 15.3.114.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such Person, except if such discretion is referred to as “discretion, reasonably exercised” or “reasonable discretion” the standard for the exercise of discretion will be based from the perspective of an asset based lender. All calculations of Value, Borrowing Base components, Loans, Letters the funding of Credit, the Term Loans and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with Sport Chalet: Term Loan Agreement historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Obligated Parties shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank Agent or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a the best of Borrower’s ’ knowledge”, “to the best of Obligated Parties’ knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms Any Event of Default shall be deemed to be continuing until waived in this Agreement are defined writing by reference to a defined term in the Secured Notes Indenture Agent and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectRequired Lenders.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Sport Chalet Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.114.5.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank Agent or any Lender mean the sole and absolute discretion of such Person. All calculations Except as expressly otherwise provided herein, all fundings of Value, Borrowing Base components, Loans, Letters Loans and payments of Credit, Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.in
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” and the words “to” and “until” each mean means “to but excluding.” The section titles, table of contents and list of exhibits appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All references to statutes shall include all related rules and implementing regulations and any amendments of same and any successor statutes, rules and regulations; to any agreement, instrument or other documents (including any of the DIP Loan Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms thereof; to any Person (including Lender or an Obligor) shall mean and include the successors and permitted assigns of such Person; to “including” and “include” shall be understood to mean “including, without limitation” (and, for purposes of each DIP Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter general statement, which is followed by or referable to an enumeration of convenience only and shall not affect the interpretation of any Loan Document. All references specific matters to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (matters similar to the extent permitted by the Loan Documentsmatters specifically mentioned); (c) any section meanto the time of day shall mean the time of day on the day in question in Atlanta, Georgia, unless the context otherwise requires, a section of expressly provided in this Agreement; (d) any exhibits or schedules mean, unless to the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) time “discretion” of day mean time of day at Administrative Agent’s notice address under Section 15.3.1; or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender shall mean the sole and absolute discretion of Lender. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such PersonDefault or Event of Default occurs to the date on which such Default or Event of Default is waived in writing by Lender pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by Lender. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein Value shall be denominated in Dollars, unless expressly provided otherwise, all Revolver Loans shall be funded in Dollars and all determinations Obligations shall be repaid in Dollars (including calculations except as otherwise provided in the definition of Borrowing Base LC Obligations). In the event that any Letter of Credit is issued hereunder in a foreign currency, for purposes of calculating the amount of the Aggregate Revolver Outstandings, the LC Obligations and financial covenants) made from time the Undrawn Amount as of any date of determination the foreign currency amount of such Letter of Credit shall be converted to time Dollars by Lender using such exchange rates as Lender reasonably deems appropriate under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory Whenever the phrase “to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden best of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “Obligors’ knowledge” or words of similar concept means import relating to the knowledge or the awareness of an Obligor are used in this Agreement or other DIP Loan Documents, such phrase shall mean and refer to the actual knowledge of a Senior Officer, or knowledge that Officer of a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectBorrower.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (Enpro Industries, Inc)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” and the word "through" means "to and including". The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws include all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requiresindicates, a section of this Agreement; (d) any exhibits or schedules meanmeans, unless the context otherwise requiresindicates, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and permitted assigns; (f) time of day mean means time of day at Administrative Agent’s notice address under Section 15.3.1in the Applicable Time; or (g) except as unless otherwise expressly providedprovided herein or in any Loan Document with respect to Permitted Discretion, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAPGAAP (or, as the context may indicate, IFRS)). Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference to a Borrower’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effect.the
Appears in 1 contract
Certain Matters of Construction. The terms “herein,” ”, “hereof,” ”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” ”, and “to” and “until” each mean “to but excluding.”. The term “or” shall not be exclusive. The terms “including”, “includes” and “include” shall mean “including, without limitation” and, for purposes of each Loan Credit Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. All references to “day”, “week” or “month” shall be references to a calendar day, week or month unless otherwise stated. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Credit Document. All Unless otherwise expressly stated or qualified herein, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatementswaivers, supplements, waivers supplements and other modifications, extensions or renewals from time to time (to the extent permitted by the Loan Credit Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated herein by reference; (e) any Person include successors and permitted assigns of such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1Eastern time; or (g) except as expressly provided, the discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of or references to Value, Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, Dollars unless expressly provided otherwiseotherwise and, and unless the context otherwise requires, all determinations (including calculations of the Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base and financial covenants) made from time to time under the Loan Credit Documents shall be made in light of the circumstances existing at such time. Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise made in a manner satisfactory to the Administrative Agent in its Permitted Discretion (and not necessarily calculated in accordance with GAAP). Borrowers Obligors shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Credit Documents. No provision of any Loan Credit Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to the best knowledge of” a Borrower’s “knowledge” Borrower or other Obligor or words of similar concept import are used in any Credit Documents, such phrase means actual knowledge of a Senior OfficerOfficer of such Borrower or other Obligor (as applicable), or knowledge that a Senior Officer of such Borrower or other Obligor (as applicable) would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes IndentureUnless otherwise expressly stated herein, the defined word term in “intercompany” shall relate to matters that are intercompany between or among the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectapplicable Consolidated Parties.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Certain Matters of Construction. The terms “"herein,” “", "hereof,” “", "hereunder” " and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “"from” " means “"from and including,” ", and “"to” " and “"until” " each mean “"to but excluding.” ". The term "or" shall not be exclusive. The terms “"including” ", "includes" and “"include” " shall mean “"including, without limitation” " and, for purposes of each Loan Credit Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. All references to "day", "week" or "month" shall be references to a calendar day, week or month unless otherwise stated. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Credit Document. All Unless otherwise expressly stated or qualified herein, all references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatementswaivers, supplements, waivers supplements and other modifications, extensions or renewals from time to time (to the extent permitted by the Loan Credit Documents); (c) any section mean, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated herein by reference; (e) any Person include successors and permitted assigns of such Person’s successors and assigns; (f) time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1Eastern time; or (g) except as expressly provided, the discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of or references to Value, Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, Dollars unless expressly provided otherwiseotherwise and, and unless the context otherwise requires, all determinations (including calculations of the Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base and financial covenants) made from time to time under the Loan Credit Documents shall be made in light of the circumstances existing at such time. Aggregate Borrowing Base, FILO Borrowing Base and Revolving Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise made in a manner satisfactory to the Administrative Agent in its Permitted Discretion (and not necessarily calculated in accordance with GAAP). Borrowers Obligors shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Credit Documents. No provision of any Loan Credit Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase "to the best knowledge of" a Borrower’s “knowledge” Borrower or other Obligor or words of similar concept import are used in any Credit Documents, such phrase means actual knowledge of a Senior OfficerOfficer of such Borrower or other Obligor (as applicable), or knowledge that a Senior Officer of such Borrower or other Obligor (as applicable) would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the mattermatter to which such phrase relates. Certain terms in this Agreement are defined by reference to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes IndentureUnless otherwise expressly stated herein, the defined word term in "intercompany" shall relate to matters that are intercompany between or among the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectapplicable Consolidated Parties.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document. All references to (a) laws or statutes include all related rules, regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include any amendments, restatements, supplements, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person include such Person’s successors and assigns; (f) unless otherwise specified, time of day mean time of day at Administrative Agent’s notice address under Section 15.3.1means Hong Kong Time; or (g) except as expressly providedunless otherwise specified herein, discretion of Administrative Agent, any Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations of Value, Borrowing Base components, fundings of Loans, issuances of Letters of Credit, Credit and payments of Obligations and other amounts herein shall be denominated in DollarsDollars and, unless expressly provided otherwisethe context otherwise requires, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers Obligors shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision. Reference Whenever the phrase “to a the best of Borrower’s “knowledge” or words of similar concept import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in this Agreement are defined by reference matter to a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as which such Existing Indenture is in effectphrase relates.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Trident Microsystems Inc)
Certain Matters of Construction. The rules of construction and interpretation included in this Section apply to all Loan Documents. The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement the applicable document as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that and the rule of ejusdem generis shall not be applicable apply to limit any provision. Section titles appear as a matter of convenience only and shall not affect the interpretation of any a Loan Document. All references Reference to any (a) laws include law includes all related regulations, interpretations, supplements, amendments and successor provisions; (b) any document, instrument or agreement include includes any amendmentsamendment, restatementsextension, supplementssupplement, waivers waiver, replacement and other modifications, extensions or renewals modification thereto (to the extent permitted by the Loan Documents); (c) any section meanmeans, unless the context otherwise requires, a section of this Agreementthe applicable document; (d) any exhibits exhibit or schedules meanschedule means, unless the context otherwise requires, exhibits and schedules attached heretoan exhibit or schedule to the applicable document, which are hereby is thereby incorporated by reference; (e) any Person include such Person’s includes its permitted successors and assigns; (f) time unless otherwise specified, all references herein to times of day mean shall be references to Pacific time of day at Administrative Agent’s notice address under Section 15.3.1(daylight or standard, as applicable); or (g) except as expressly provided, discretion of Administrative Agent, any Issuing Bank or any Lender mean means the sole and absolute discretion of such PersonPerson exercised at any time. All calculations of Any references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and all determinations any determination (including calculations calculation of Borrowing Base and financial covenants) made from time to time by Obligors under the Loan Documents shall be made in light of the circumstances existing at such time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise reasonably satisfactory to the Administrative Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall Obligors have the burden of establishing any alleged negligence, misconduct or lack of good faith by Administrative Agent, any Issuing Bank or any Lender Indemnitee under any a Loan DocumentsDocument. No provision of any a Loan Documents Document shall be construed against any a party by reason of such party it having, or being deemed to have, drafted the provision. Reference to a Borroweran Obligor’s “knowledge” or similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter. Certain terms in For purposes of any determination under any provision of this Agreement are defined by reference expressly requiring the use of a current exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the Exchange Rate (rounded to the nearest currency unit, with 0.5 or more of a defined term in the Secured Notes Indenture and in the event of any ambiguity, inconsistency or conflict between the Existing Indenture and the 2026 Notes Indenture, the defined term in the Existing Indenture shall supersede and control for so long as such Existing Indenture is in effectcurrency unit being rounded upward).
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (SMART Global Holdings, Inc.)