Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Party, Agent and each Purchaser and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’s, Agent’s and each Purchaser’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreement. Each Note Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement. (b) The Required Purchasers (or the Agent with the consent in writing of the Required Purchasers) and Issuer may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Documents executed by the Note Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent or the Note Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect would: (i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser; (ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby; (iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser; (iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser; (v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 2 contracts
Sources: Note Purchase Agreement (Keane Group, Inc.), Note Purchase Agreement (Keane Group, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Partythe Loan Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Parties, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Loan Parties may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented Lender or the Maximum Revolving Advance Amount (other than as permitted pursuant to in writing by such PurchaserSection 2.25);
(ii) extend the maturity of any the Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral (other than in any transaction accordance with the terms of this Agreement and in connection with a permitted transfer or series of related transactions, unless consented to in writing sale thereof) or as required by each Purchaser or (ii) release all or substantially all the terms of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserIntercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained);
(vi) increase the Agent, Advance Rates above the Advance Rates in effect on the Closing Date; or
(vii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; sale thereof Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC or each affected Purchaser Borrower may, at its option, require such Lender to assign its interest in the Advances to PNC (with PNC’s consent) or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC or Borrower elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount (the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Overadvance Threshold Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Overadvance Threshold Amount by more than ten percent (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the Issuer may, at its sole expense circumstances and effort, upon notice not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to such Non-Consenting Purchaser be involuntary overadvances and the Agent, require such Non-Consenting Purchaser to sell, without recourse (shall be decreased in accordance with the preceding sentence. In addition to (and subject not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Partythe Loan Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sapplicable Loan Parties’, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the applicable Loan Parties may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by such Loan Parties (or by Borrowing Agent on behalf of the Note PartiesBorrowers), for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note such Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that (w) without the consent of the Required Term Loan Lenders, no such supplemental agreement shall be effective if may change the effect wouldamortization or application of prepayments with respect to the Term Loan, (x) no such supplemental agreement may change the rights and duties of Agent without Agent’s consent thereto, (y) no such supplemental agreement may change the rights and duties of any Co-Collateral Agent without such Co-Collateral Agent’s consent thereto, and (z) no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentages, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender, the Maximum Revolving Advance Amount, the Maximum Canadian Revolving Advance Amount or the Maximum U.S. Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under by any other Note Document, in each case, unless consented Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaserthis Agreement);
(v) change increase the rights and duties of Advance Rates above the Agent, Advance Rates in effect on the Closing Date;
(vi) release any Guarantor from its obligations hereunder or adversely affect under the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Other Documents.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note applicable Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything .
(d) If any action to be taken by the contrary herein, no Defaulting Purchaser shall have any right to approve Lenders or disapprove any amendment, waiver or consent Agent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the unanimous consent, waiver authorization or amendment in question requires the agreement of all the Purchasers Lenders, and a Lender that is not also a Co- Collateral Agent (iiisuch Lender a “Holdout Lender”) fails to give its consent, authorization or agreement, then, provided that the Required Purchasers Lenders (or Required Term Loan Lenders, as applicable) have agreed to provided such consent, waiver authorization or amendmentagreement, then Agent or Borrowing Agent (with respect the approval of Agent), upon at least five (5) Business Days’ prior irrevocable notice to any Purchaser the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute Lenders that has not so consented are reasonably acceptable to Agent (such Purchasereach, a “Non-Consenting PurchaserReplacement Lender”), and the Issuer may, at its sole expense and effort, upon Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such Non-Consenting Purchaser and replacement, which date shall not be later than fifteen (15) Business Days after the Agent, require date such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject notice is given. Prior to the restrictions contained ineffective date of such replacement, the Holdout Lender and consents required byeach Replacement Lender shall execute and deliver a Commitment Transfer Supplement, Section 16.3(c)), subject only to the Holdout Lender being repaid all of its interests, rights outstanding Obligations without any premium or penalty of any kind whatsoever (other than breakage expenses and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable pursuant to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee2.2(b)(v). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, If the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser Holdout Lender shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant such Commitment Transfer Supplement prior to Section 16.3 within ten (10) Business Days the effective date of any request therefor by the Agentsuch replacement, the Issuer or any Purchaser, the Non-Consenting Purchaser Holdout Lender shall automatically be deemed to have executed and delivered such Assignment Commitment Transfer Supplement. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 15.3. Until such time as the Replacement Lender shall have acquired all of the Obligations, the Commitments and Assumptionthe other rights and obligations of the Holdout Lender hereunder and under the Other Documents, the Holdout Lender shall remain obligated to make the Holdout Lender’s Pro Rata Share of Loans and to purchase its pro rata share of its participation in each Letter of Credit.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iii) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders (provided, that Required Lenders (or, if there are then only two Lenders, any Co- Collateral Agent) may prospectively revoke Agent’s ability to make Out-of-Formula Loans), voluntarily permit the outstanding Canadian Revolving Advances at any time to exceed the Canadian Formula Amount by up to ten percent (10%) of the Canadian Formula Amount and/or the U.S. Revolving Advances at any time to exceed the U.S. Formula Amount by up to ten percent (10%) of the U.S. Formula Amount, in each case, for up to thirty (30) consecutive Business Days in any ninety (90) day period (collectively, the “Out-of-Formula Loans”); provided, that, (i) the aggregate amount of Out-of-Formula Loans and Protective Advances shall not exceed 10% of the U.S. Formula Amount or Canadian Formula Amount, as applicable, (ii) the aggregate amount of Out-of-Formula Loans, Protective Advances and the other then outstanding Revolving Advances shall not exceed the Maximum Revolving Advance Amount and (iii) the aggregate amount of Out-of-Formula Loans and Protective Advances shall not exceed $5,000,000 at any one time outstanding. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the applicable Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, or collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Agent’s sole discretion (provided, that Required Lenders (or, if there are then only two Lenders, any Co-Collateral Agent) may prospectively revoke Agent’s ability to make such Protective Advances), (i) after the occurrence and during the continuation of a Default or an Event of Default, or (i) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make U.S. Revolving Advances to the U.S. Borrowers and/or Canadian Revolving Advances to the Canadian Borrowers (collectively, “Protective Advances”) on behalf of the Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to any Borrower pursuant to the terms of this Agreement; provided, that at (x) any time after giving effect to any Protective Advance (i) the outstanding Canadian Revolving Advances do not exceed one hundred and ten percent (110%) of the Canadian Formula Amount, (ii) the outstanding U.S. Revolving Advances do not exceed one hundred and ten percent (110%) of the U.S. Formula Amount, (iii) the aggregate amount of Protective Advances, Out-of-Formula Loans and other then outstanding Revolving Advances shall not exceed the Maximum Revolving Advance amount, and (iv) the aggregate amount of Protective Advances and Out-of-Formula Loans shall not exceed $5,000,000 at any one time outstanding and (y) the Agent may, not withstanding anything above to the contrary, make Protective Advances after the occurrence and during the continuation of a Default or an Event of Default to the extent the aggregate amount of such Protective Advances and Out-of-Formula Loans does not exceed $2,500,000.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an 72 74 agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any guarantor from any obligations under its guarantee with respect to in writing by the Required Purchasers and Agent; Obligations. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a 73 75 specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding the foregoing, Agent may at its discretion and without recourse the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall endeavor to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionpreceding sentence.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PVC Container Corp), Revolving Credit, Term Loan and Security Agreement (PVC Container Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Partythe Loan Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Parties, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Loan Parties may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Note the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral (other than in any transaction accordance with the terms of this Agreement and in connection with a permitted transfer or series of related transactions, unless consented to in writing sale thereof) or as required by each Purchaser or (ii) release all or substantially all the terms of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserIntercreditor Agreement;
(v) materially change the rights and duties of the Agent (provided Agent, ’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; sale thereof Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or each affected Purchaser may be effected Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) or to another Lender or to any other Person designated by the consent of Agent (the applicable Purchasers other than Defaulting Purchasers“Designated Lender”), except that (x) for a price equal to the Commitment of any then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Defaulting Purchaser may not be increased or extended without the consent of such PurchaserLender, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially which interest and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser fees shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2paid when collected from Borrower. In the event that (i) the Issuer has requested that the Purchasers consent Agent or Borrower elects to a departure require any Lender to assign its interest to GC-Cap or waiver of any provisions of the Note Documents its Affiliates or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained inDesignated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and consents required by, Section 16.3(c)), all of such Lender will assign its interests, rights and obligations with respect interest to the Notes GC-Cap (or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and feesAffiliates) or the Issuer Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the extent amounts are due and owing terms of this Agreement; provided, that at any time after giving effect to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, Loans the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionoutstanding Loans do not exceed $2,000,000.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Loan Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date or amend the definition of “Formula Amount” if the effect of such amendment is to in writing increase the amount available to be borrowed by the Required Purchasers and Agent; Borrowers.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that (x) voluntarily permit the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser outstanding Revolving Advances to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser Domestic Borrowers and the Agent, require such Non-Consenting Purchaser Maximum Undrawn Amount at any time to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding principal of Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to Borrowers to exceed the Formula Amount by more than ten percent (10%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from to make Revolving Advances to Borrowers on behalf of the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to have executed pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and delivered such Assignment and Assumptionten percent (110%) of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Presstek Inc /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 (including, without limitation, in connection with any release of Collateral as to which a transaction permitted under "Release Notice" is required pursuant to the terms of Section 7.1, (i) release all or substantially all 14 of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;Subordination Agreement).
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Revolving Advances to PNC or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal of amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (PNC or to the extent Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Vista Information Solutions Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding -80- or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) increase the Maximum Revolving Advance Amount. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal of amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent elects to require any Lender to assign its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (Agent or to the extent Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionappropriate.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Trescom International Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, each Affiliate Guarantor, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, each Affiliate Guarantor's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower and each Affiliate Guarantor acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers and Affiliate Guarantors may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by Borrowers and the Note PartiesAffiliate Guarantors, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent Agent, Borrowers or the Note Parties Affiliate Guarantors thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) change the rights and duties of Agent.
(vi) increase the AgentAdvance Rates above the Advance Rates in effect on the Closing Date.
(vii) increase (x) the aggregate principal amount of the Term Loan, (y) the Maximum Capital Expenditure Loan Amount, or adversely affect (z) Maximum Revolving Advance Amount or permit any Revolving Advance to be made if after giving effect thereto the rights, duties, liabilities total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or indemnities exceed one hundred ten percent (110%) of the Agent, unless consented to in writing by Formula Amount.
(viii) release any Affiliate Guarantor from its obligations arising hereunder or under the Required Purchasers and Agent; Other Documents. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Affiliate Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Affiliate Guarantors, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(c) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer Agent may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to Agent or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event IBJW elects to require any Lender to assign its interest to IBJW or to the Designated Lender, IBJW will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to IBJW or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, IBJW or the Designated Lender, as appropriate, and Agent. Notwithstanding the foregoing, Agent may at its Notes, accrued interest thereon, accrued fees discretion and all other amounts payable to it hereunder and under without the other Note Documents (including the full amount consent of the Prepayment PremiumRequired Lenders, if anyvoluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, under Section 2.4(b)) the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from the assignee (time to time due to the extent of such outstanding principal and accrued interest and fees) or fact that the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall Formula Amount was unintentionally exceeded for any reason, including, but not be required to consummate any such sale or delegation iflimited to, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be Collateral which was previously deemed to have executed and delivered such Assignment and Assumptionbe Eligible Receivables becoming ineligible or collections of Receivables which were applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b14.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Advance Amount;
(ii) extend the maturity of any the Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;14.2(b); or
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; .
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit Agreement (Crystal River Capital, Inc.)
Entire Understanding. (a) a. This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) b. The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consentevent PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, waiver PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or amendment in question requires the agreement Designated Lender no later than five (5) days following receipt of all such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Purchasers Designated Lender, as appropriate, and Agent.
(iiia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have agreed changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to such consentAgent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, waiver including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or amendment"Eligible Inventory", then with respect as applicable, becomes ineligible, collections of Receivables applied to any Purchaser that has not so consented reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (such Purchaser, a “Non-Consenting Purchaser”10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the Issuer maycircumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at its sole expense and effortany time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, upon notice to such Non-Consenting Purchaser and make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Compudyne Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyObligor, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sObligor's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Obligor acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesObligors, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Obligors thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage or Commitment Amount of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Obligors to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) increase the Maximum Revolving Advance Amount or permit any Revolving Advance to in writing by be made if after giving effect thereto the Required Purchasers and Agent; total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred ten percent (110%) of the Formula Amount. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesObligor, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesObligors, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender in writing pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal of amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (PNC or to the extent Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit, Acquisition Term Loan and Security Agreement (Philipp Brothers Chemicals Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the written consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the written consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the written consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Advance Amount without the written consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaseror any provision of this Agreement that requires the consent of all Lenders without the written consent of all Lenders;
(ivv) in alter, amend or modify the provisions of Section 11.5 hereof without the written consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(ivi) release all or substantially all of the Collateral or any Guarantor under any Guaranty (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (iithis Agreement) release without the written consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(vvii) change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of the Agent, or adversely affect Maximum Revolving Advance Amount without the rights, duties, liabilities or indemnities written consent of all Lenders;
(viii) increase the Agent, unless consented to Advance Rates above the Advance Rates in writing by effect on the Required Purchasers Seventh Amendment and AgentRestatementEffective Date without the written consent of all Lenders; or
(ix) release any Borrower without the written consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from the consent Loan Parties. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such PurchaserOut-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, “Eligible Insured Foreign Receivables”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to the Loan Parties pursuant to the terms of this Agreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such consentProtective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), waiver or amendmentany such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the 82 conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or increase the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of $1,000,000, or release any Borrower (other than in accordance with the Guarantee, unless consented to provisions of this Agreement as in writing by each Purchaser;effect on the Closing Date) as an obligor for the Obligations.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the 83 Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed one hundred and five percent (105%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, from time to time in Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (i) to preserve or protect the Issuer has requested that the Purchasers consent to a departure Collateral or waiver of any provisions of the Note Documents or agree to any amendment theretoportion thereof, (ii) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Advances and other Obligations, or (iii) to pay any other amount chargeable to Borrowers pursuant to the Required Purchasers have agreed to such consentterms of this Agreement; provided, waiver or amendment, then with respect that at any time after giving effect to any Purchaser that has such Revolving Advances the outstanding Revolving Advances do not so consented exceed one hundred and five percent (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject 105%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Foster L B Co)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyTHIS AGREEMENT AND THE DOCUMENTS EXECUTED CONCURRENTLY HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, Agent and each Purchaser and supersedes all prior agreements and understandingsCONTEMPORANEOUS, if any, relating to the subject matter hereofOR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’s, Agent’s and each Purchaser’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreement. Each Note Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this AgreementTHERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(b) The Required Purchasers (or the Lender, Agent with the consent in writing of the Required Purchasers) and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLender, Agent Agent, Borrower or the Note Parties any Guarantor thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect would:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers each Guarantor, Lender and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lender shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything Agent is hereby authorized by the Borrower, each Guarantor and Lender, from time to time in the contrary hereinAgent’s sole discretion, no Defaulting Purchaser shall have (a) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any right to approve or disapprove time that any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the other applicable Purchasers other than Defaulting Purchasers)conditions precedent set forth in Section 8.2 hereof have not been satisfied, except that (x) to make Revolving Advances to Borrower on behalf of Lender which the Commitment of any such Defaulting Purchaser may not be increased Agent, in its reasonable business judgment, deems necessary or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses desirable (i) through (iii) of Section 16.2. In to preserve or protect the event that (i) the Issuer has requested that the Purchasers consent to a departure Collateral, or waiver of any provisions of the Note Documents or agree to any amendment theretoportion thereof, (ii) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Revolving Advances and other Obligations, or (iii) to pay any other amount chargeable to Borrower pursuant to the Required Purchasers have agreed to such consentterms of this Agreement; provided, waiver or amendment, then with respect that at any time after giving effect to any Purchaser that has such Revolving Advances the Outstanding Commitments do not so consented exceed one hundred and ten percent (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject 110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionMaximum Commitment Amount.
Appears in 1 contract
Sources: Revolving Credit Agreement (Behringer Harvard Reit I Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note of the Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee or principal amounts payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) increase the Maximum Revolving Advance Amount.
(vi) change the rights and duties of Agent.
(vii) permit any Advance to be made if after giving effect thereto the total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(viii) release any Borrower or Guarantor.
(ix) increase Advance Rates above the Advance Rates in effect on the Closing Date. In all other respects the Agent is authorized to take such actions or fail to take such actions if the Agent, or adversely affect in its reasonable discretion, deems such to be advisable and in the rightsbest interest of Lenders, dutiesincluding, liabilities or indemnities but not limited to, the making of an overadvance unless it is specifically instructed to the Agent, unless consented to in writing contrary by the Required Purchasers and Agent; Lenders. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Graham Field Health Products Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Delayed Draw Term Loan Commitment Percentage or the maximum dollar commitment amount of any Purchaser unless consented to in writing by the Delayed Draw Term Loan without the consent of such PurchaserLender directly affected thereby;
(ii) extend the maturity Term or the time for payment of any Note principal or interest of the Loans (excluding the due date for of any amount payable hereundermandatory prepayment of the Loans), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by the Loans or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaserwithout the consent of all Lenders;
(iv) in alter, amend or modify the provisions of Section 11.5 hereof without the consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(iv) release all or substantially all of the Collateral (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or this Agreement) without the consent of all Lenders directly affected thereby; or
(iivi) release any Borrower without the consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;Lenders.
(vc) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Term Loan Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Party, Agent Borrower and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’s, Agent’s Borrower's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Agent with the consent in writing of the Required Purchasers) Lenders and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent Lenders or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect would:
consent of all Lenders: (i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;
Lenders pursuant to this Agreement. (iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; 15.2(b). Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Parties, the Purchasers Borrower and Agent Lenders and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent Borrower and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Loan Agreement (McMS Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;or Section 2.2(f).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) the consentaccrued and unpaid interest and fees due such Lender, waiver or amendment in question requires the agreement of all the Purchasers which interest and fees shall be paid when collected from Borrowers less (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premiumclosing fee received by such Lender pursuant to the terms hereof or of any of the Other Documents multiplied by a fraction, the numerator of which is the number of months remaining in the then current Term of the Agreement and the denominator of which is the total number of months from the Closing Date until the end of the Term. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if anyLenders do make Out-of-Formula Loans, under neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee2.1(a). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.For
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, written or oral, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) except in connection with an increase pursuant to Section 2.24, increase the Revolving Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Loan Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or 074658.01845/123458281v.1
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that (x) voluntarily permit the Commitment of outstanding Revolving Advances at any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser time to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 6.5(c) hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Overadvance Threshold Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”) whether with respect to Revolving Advances made to Borrowers. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Inventory,” “Eligible Receivables,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding principal of Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have the Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. 074658.01845/123458281v.1 In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from to make Revolving Advances to Borrowers on behalf of the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to have executed pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and delivered such Assignment and Assumptionten percent (110%) of the Formula Amount with respect to Borrowers.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (SMTC Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Maximum Loan Amount or the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), without recourse (in accordance with and subject for a price equal to the restrictions contained inthen outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and consents required bysuch Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Section 16.3(c))PNC or the Designated Lender, all as appropriate, and Agent. Notwithstanding (a) the existence of its interestsa Default or an Event of Default, rights and obligations with respect to the Notes or Commitments (b) that is the subject any of the related consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, waiver Agent may at its discretion and amendment and without the related Note Documents consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 6.12 hereof at such time (such sum, the "Overadvance Threshold Amount") by up to one hundred and five percent (105%) of the Overadvance Threshold Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding principal of Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Overadvance Threshold Amount by more than five percent (5%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from the assignee (to make Revolving Advances to the extent Borrowers on behalf of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) to have executed pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement; PROVIDED, THAT at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and delivered such Assignment and Assumptionfive percent (105%) of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Lesco Inc/Oh)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all the Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the any Collateral in during any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;calendar year.
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser of the Lenders and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers the Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Candies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement. All parties hereto acknowledge that they have participated equally in the drafting of this Agreement and each other Loan Document, and that therefore any cannons of interpretation providing that the provisions or language of a document shall be construed against the drafter thereof shall be inapplicable to this Agreement and the Loan Documents and each party hereto waives all rights to asset any arguments, claims or defenses based thereon.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Loan Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage and/or the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or increase the Maximum Revolving Advance Amount or the Maximum Term Loan Amount;
(ii) extend the maturity of any Note Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Borrower. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured waived and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances and the Loan Documents to Agent or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans and shall also be subject to in clauses (ithe fees provided for under Section 3.1(b) through (iii) hereof; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuance of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Revolving Advances to Borrowers on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Swenson Granite Co LLC)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;); and
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000.00;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, Agent may at its discretion and without recourse the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and subject not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, from time to time in Agent’s sole discretion, (a) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Loan and Security Agreement (Bio Reference Laboratories Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (ARKO Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. hereof Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Default or Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note Note, the Term or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$100,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default or Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default or Default shall extend to any subsequent Event of Default or Default (whether or not the subsequent Event of Default or Default is the same as the Event of Default or Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer Agent may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent elects to require any Lender to assign its interest to PNC or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for
(a) For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables” or “Eligible Unbilled Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole expense discretion, (A) after the occurrence and effortduring the continuation of a Default or an Event of Default, upon notice or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to such Non-Consenting Purchaser and make Revolving Advances to Borrower on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, ~4 at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Kenexa Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (Domestic Rate Loans; provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaserthat, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.Lenders do make Out-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Empeiria Acquisition Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, written or oral, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) except in connection with an increase pursuant to Section 2.24, increase the Revolving Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Loan Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that (x) voluntarily permit the Commitment of outstanding Revolving Advances at any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser time to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 6.5(c) hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Overadvance Threshold Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”) whether with respect to Revolving Advances made to Borrowers. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Inventory,” “Eligible Receivables,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding principal of Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have the Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from to make Revolving Advances to Borrowers on behalf of the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to have executed pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and delivered such Assignment and Assumptionten percent (110%) of the Formula Amount with respect to Borrowers.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (SMTC Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date;
(viii) modify Section 11.5; or
(ix) release any Borrower or Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days; provided that such outstanding Advances shall not exceed the Maximum Revolving Advance Amount less the aggregate Maximum Undrawn Amount (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables”, “Eligible Dating Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”5%), Agent shall use its best efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the Issuer maycircumstances and not inconsistent with the reason for such excess, at its sole expense but in no event may such involuntary advances be outstanding for a period of more than sixty (60) consecutive days without the written consent of Required Lenders. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (shall be decreased in accordance with the preceding sentence. In addition to (and subject not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, from time to time in Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject five percent (105%) of the related consent, waiver and amendment and Formula Amount for more than sixty (60) consecutive days without the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (written consent of Required Lenders; provided further that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser Advances shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, exceed the circumstances entitling Maximum Revolving Advance Amount less the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionaggregate Maximum Undrawn Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Johnson Outdoors Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000; or
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Batteries Batteries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent, Term B Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with writing, signed by the party to be charged (subject to the other provisions of this AgreementSection 17.2). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (Lenders, or the Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent Lenders or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Commitment Percentage, the Term Loan B Commitment Percentage or maximum dollar Dollar commitment of any Purchaser unless consented to in writing by Lender without the written consent of such PurchaserLender;
(ii) extend the maturity of any Note or other Obligation or the due date for any amount payable hereunderhereunder or under any Other Document, or decrease the rate of interest or reduce any fee amount payable hereunder by Borrowers to Lenders pursuant to this Agreement or under any other Note Document, in Other Document without the written consent of each case, unless consented to in writing by each Purchaser Lender directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers Lenders or the term Required Revolving Lenders, or alter, amend or modify this Section 16.2(b17.2(b) unless consented to in writing by without the written consent of each PurchaserLender directly affected thereby;
(iv) in each case, release (or contractually subordinate Agent’s Lien for the benefit of Lenders with respect to) any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1the provisions of this Agreement or the Other Documents, (ias applicable) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of $1,000,000 or release any Loan Party without the Guarantee, unless consented to in writing by each Purchaserwritten consent of all Lenders;
(v) change permit any Revolving Advance (including, without limitation, any Overadvances and protective advances) to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder plus the then outstanding Swingline Advances would exceed (1) the Formula Amount for more than thirty (30) consecutive Business Days, (2) one hundred and five percent (105%) of the Formula Amount or (3) the Maximum Revolving Advance Amount without the written consent of all Lenders;
(vi) (x) increase the Advance Rates above the Advance Rates in effect on the Closing Date, or (y) amend the definitions of the terms Eligible US Receivables, Eligible Foreign Receivables, Eligible Unbilled US Receivables, Eligible Unbilled Foreign Receivables, Unbilled Receivables or Eligible Reserves that would result in an increase in the Formula Amount (or in any definition used in connection with the foregoing terms that would result in an increase in the Formula Amount), or (z) amend the definition of the terms Amortizing Availability, Amortizing Revolving Advances, Applicable Margin, Letter of Credit Sublimit, Maximum Foreign Revolving Advance Amount, Maximum Revolving Advance Amount, Maximum US Revolving Advance Amount, Undrawn Availability or Undrawn Availability Reserve, without, in each case, the written consent of all Lenders; or
(vii) alter, amend or modify the provisions of Sections 2.21 (solely with respect to the priorities of application of proceeds received by Agent thereunder), 8.2 or 11.5 without the written consent of all Lenders.
(viii) alter, amend or modify the provisions of Sections 2.7, 2,21 (other than with respect to the priorities of application of proceeds received by Agent thereunder), 4.1, 4.3, 4.11, 4.15, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.12, 7.17, 7.20, 7.23, 7.24, 9.2, 9.7, 9.8, 9.9, 9.11, 9.17, 10.1, 10.3, 10.5, 10.14 or 17.2(c) without the written consent of Required Revolving Lenders and Term B Agent.
(c) The rights and duties of the Agent, or adversely affect Term B Agent and Swingline Lender may only be modified with the rights, duties, liabilities or indemnities written consent of the Agent, unless consented to in writing by Term B Agent and Swingline Lender as the Required Purchasers and Agent; case may be.
(d) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders, Term B Agent and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent, Term B Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. .
(e) Notwithstanding anything to (a) the contrary hereinexistence of a Default or an Event of Default, no Defaulting Purchaser shall (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any right to approve or disapprove any amendmentother provision of this Agreement, waiver or consent hereunder (Agent may, at its discretion and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that voluntarily permit the outstanding Revolving Advances at any time to exceed one hundred percent (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii100%) of Section 16.2the Formula Amount for up to thirty (30) consecutive Business Days, whether with respect to Revolving Advances made to US Borrowers, to Foreign Borrowers or to Borrowers in the aggregate, but not in excess of one hundred and five percent (105%) of the Formula Amount, nor in any event in excess of the Maximum Revolving Advance Amount. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary Overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible US Receivables” or “Eligible Foreign Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or Overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), whether with respect to Revolving Advances made to US Borrowers, to Foreign Borrowers or to Borrowers in the aggregate, Agent shall use its efforts to have the applicable Borrowing Group decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary Overadvances shall be deemed to be involuntary Overadvances and shall be decreased in accordance with the preceding sentence.
(f) In addition to the discretionary Overadvances permitted above in this Section 17.2, Agent is hereby authorized by the Borrowers and the Lenders, from time to time in Agent’s sole discretion, (a) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Overadvances to the Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (i) to preserve or protect the Issuer has requested that the Purchasers consent to a departure Collateral, or waiver of any provisions of the Note Documents or agree to any amendment theretoportion thereof, (ii) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Advances and other Obligations, or (iii) to pay any other amount chargeable to the Required Purchasers have agreed applicable Borrowing Group pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such consent, waiver or amendment, then Revolving Advances the aggregate amount of outstanding Overadvances (including any discretionary Overadvances made by Agent pursuant to Section 17.2(e)) do not exceed five percent (5%) of the Formula Amount with respect to any Purchaser that has not so consented (such PurchaserUS Borrowers, a “Non-Consenting Purchaser”), to Foreign Borrowers or to Borrowers in the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionaggregate.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount,
(ii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement,
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;),
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release releasing all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;Collateral,
(v) change the rights and duties of Agent,
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the AgentFormula Amount, unless consented to or
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consent, waiver event PNC elects to require any Lender to assign its interest to PNC or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained inDesignated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and consents required by, Section 16.3(c)), all of such Lender will assign its interests, rights and obligations with respect interest to PNC or the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(cDesignated Lender no later than five (5) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Zanett Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with writing, signed by the party to be charged (subject to the other provisions of this AgreementSection 17.2). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (Lenders, or the Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent Lenders or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar Dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;17.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of $1,000,000 or, subsequent to the GuaranteeClosing Date, unless consented to in writing by each Purchaser;release any Loan Party.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agenttotal of Revolving Advances outstanding hereunder plus the then outstanding Swingline Advances would exceed (1) the Formula Amount for more than thirty (30) consecutive Business Days, or adversely affect the rights, duties, liabilities or indemnities (2) one hundred and five percent (105%) of the AgentFormula Amount or (3) the Maximum Revolving Advance Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) alter, unless consented to in writing by amend or modify the Required Purchasers provisions of Section 7.23.
(c) The rights and Agent; duties of Agent and the Swingline Lender may only be modified with the written consent of Agent and the Swingline Lender as the case may be. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to (a) the contrary hereinexistence of a Default or an Event of Default, no Defaulting Purchaser shall (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any right to approve or disapprove any amendmentother provision of this Agreement, waiver or consent hereunder (Agent may, at its discretion and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that voluntarily permit the outstanding Revolving Advances at any time to exceed one hundred percent (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii100%) of Section 16.2the Formula Amount for up to thirty (30) consecutive Business Days, whether with respect to Revolving Advances made to US Borrowers, to Foreign Borrowers or to Borrowers in the aggregate, but not in excess of one hundred and five percent (105%) of the Formula Amount, nor in any event in excess of the Maximum Revolving Advance Amount. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible US Receivables” or “Eligible Foreign Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (i5%), whether with respect to Revolving Advances made to US Borrowers, to Foreign Borrowers or to Borrowers in the aggregate, Agent shall use its efforts to have the applicable Borrowing Group decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 17.2, the Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems necessary or agree desirable (a) to preserve or protect the Collateral, or any amendment theretoportion thereof, (iib) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Advances and other Obligations, or (iii) to pay any other amount chargeable to the Required Purchasers have agreed applicable Borrowing Group pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such consent, waiver or amendment, then Revolving Advances the outstanding Revolving Advances do not exceed one hundred and five percent (105%) of the Formula Amount with respect to any Purchaser that has not so consented (such PurchaserUS Borrowers, a “Non-Consenting Purchaser”), to Foreign Borrowers or to Borrowers in the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionaggregate.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by each of the Issuer’sparty or parties making such representations, Agent’s and each Purchaser’s respective officerswarranties or guaranties. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or 82 84 by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Maximum Loan Amount or increase the Commitment Percentage of any Purchaser unless consented Lender,
(ii) increase the Receivables Advance Rate in excess of 95%, increase the Antenna Inventory Advance Rate in excess of 60% or increase the Battery Advance Rate in excess of 50% (this provision shall apply to actions taken by Agent in writing by such Purchaseraccordance with Section 2. 1 (b));
(iiiii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee or principal payment payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify Section 2.5, Section 15.3(a) or this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser15.2(b);
(v) release any Collateral during any calendar year having an aggregate value in excess of $500,000;
(vi) change the rights and duties of Agent; or
(vii) voluntarily make any Revolving Advance if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and twenty percent (120%) of the AgentFormula Amount. The foregoing limitation shall not apply to involuntary overadvances that may result from the limitations set forth in this Agreement that were unintentionally exceeded for reasons including, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Partieswithout limitation, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed Collateral believed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether eligible in fact being or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) becoming ineligible or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.return of
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Centurion Wireless Technologies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount of interest, fees, or principal payable hereunderhereunder (other than mandatory prepayments), or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;16.2.
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Restatement Date.
(viii) release any Borrower or Guarantor (other than in accordance with the provisions of this Agreement). Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(c) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to Section 16.2(b) and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(d) Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to sixty (60) consecutive days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
(e) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed the lesser of: (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions one hundred and five percent (105%) of the Note Documents or agree to any amendment theretoFormula Amount, and (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionMaximum Revolving Advance Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Guaranty, and Security Agreement (Rocky Brands, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Term Note or the due date for any amount payable hereunder, or decrease the principal of or the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing or any provision of this Agreement providing for consent or other action by each Purchaserall Lenders;
(iv) in each caseamend, other than in connection with a transaction permitted under modify, or eliminate Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser11.5;
(v) amend, modify, or eliminate Section 14.13;
(vi) other than as permitted by Section 14.13, release Agent’s Lien in and to any of the Collateral; or
(vii) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Elm Park Capital Management may, at its option, require such Lender to assign its interest in the Term Loan to another Lender or each affected Purchaser may be effected with to any other Person designated by the consent of Agent (the applicable Purchasers other than Defaulting Purchasers“Designated Lender”), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser for a price equal to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through the then outstanding principal amount thereof plus (iiiii) of Section 16.2accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event that (i) Elm Park Capital Management elects to require any Lender to assign its interest to another Lender or to the Issuer has requested that Designated Lender, Elm Park Capital Management will so notify such Lender in writing within 45 days following such Lender’s denial, and such Lender will assign its interest to another Lender or the Purchasers consent Designated Lender no later than five days following receipt of such notice pursuant to a departure Commitment Transfer Supplement executed by such Lender, such other Lender or waiver of any provisions of the Note Documents or agree to any amendment theretoDesignated Lender, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained inas appropriate, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Empeiria Acquisition Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter or hereafter made shall have no force and effect unless in writing, signed and executed by each of the Issuer’sparty or parties making such representations, Agent’s and each Purchaser’s respective officerswarranties or guaranties. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserCommitment Percentage or Maximum Revolving Loan Commitment;
(ii) increase any of the Revolving Advance Rates to in excess of (x) 85% with respect to the Receivables Advance Rate and (y) 60% with respect to the Inventory Advance Rate and Agent acknowledges that the limitations contained in this Section 15(b)(ii) shall apply to Section 2.1(b) hereof;
(iii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) release any of the Collateral (other than permitted hereunder);
(v) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b); or
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(vvi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser of Lenders and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Fonda Group Inc)
Entire Understanding. (a) This Agreement and the documents Other Documents executed concurrently herewith contain the entire understanding between and among each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each the respective officers of the Issuer’sparty making such promises, Agent’s and each Purchaser’s respective officersrepresentations, warranties, or guarantees. Neither this Agreement nor any Other Document nor any portion or provisions hereof or thereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this AgreementAgreement or any Other Document.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Revolving Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Revolving Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Revolving Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Revolving Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of letter of credit fees (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Amount without the consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b17.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 12.2 hereof without the consent of all Lenders;
(vi) release and/or subordinate Agent’s Liens on any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of the Materiality Threshold without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to clause (e) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Borrowing Base for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Borrowing Base without the consent of each Lender directly affected thereby;
(ix) increase the Applicable Advance Rate above the Applicable Advance Rate in effect on the Closing Date or alter the definition of “Eligible Mortgage Loans” (or adjust the applicability of the criteria therein, including, without limitation, any part of Annex Two, Part I hereof, the definition of Funding Cap, or adversely affect the rightsdefinition of Funding Requirements) in a manner that has the effect of increasing the Borrowing Base or the availability of Revolving Advances, dutiesin any case, liabilities without the consent of all Lenders;
(x) release any Loan Party without the consent of all Lenders; or
(xi) permit Borrower to assign or indemnities transfer any of its rights or obligations under this Agreement without the Agent, unless consented to in writing by the Required Purchasers prior written consent of Agent and Agent; each Lender.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 17.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Revolving Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from Loan Parties. In the consent event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 9.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Borrowing Base by up to ten percent (10%) of the Borrowing Base for up to thirty (30) consecutive days (the “Out-of-Formula Loans”); provided, that, Required Lenders may at any time revoke Agent’s authorization to make or permit Out-of-Formula Loans under this Section 17.2(e) and any such Purchaserrevocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect of any amendments referred accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary Overadvances that may result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Mortgage Loans”, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or Overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Borrowing Base by more than ten percent (10%), Agent shall use its efforts to have Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary Overadvances shall be deemed to be involuntary Overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 17.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 17.2, Agent is hereby authorized by Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 9.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances (“Protective Advances”) to Loan Parties on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to such consentenhance the likelihood of, waiver or amendmentmaximize the amount of, then with respect repayment of the Revolving Advances and other Obligations, or (c) to pay any other amount chargeable to Loan Parties pursuant to the terms of this Agreement; provided, that the aggregate amount of all Protective Advances and Out-of-Formula Loans shall not exceed ten percent (10%) of the Maximum Revolving Amount and, provided, further, that at any time after giving effect to any Purchaser that has not so consented (such Purchaser, a “NonProtective Advances and any outstanding Out-Consenting Purchaser”)of-Formula Loans, the Issuer may, at its sole expense and effort, upon notice outstanding Revolving Advances do not exceed the Maximum Revolving Amount. Lenders holding the Revolving Commitments shall be obligated to fund such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee Protective Advances (to the extent permitted above) and effect a settlement with Agent therefor upon demand of such outstanding principal and accrued interest and fees) or the Issuer (to Agent in accordance with their respective Revolving Commitment Percentages. To the extent amounts any Protective Advances are due not actually funded by the other Lenders as provided for in this Section 17.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to the Non-Consenting Purchaser in excess Agent, and Agent shall be entitled to all rights (including accrual of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result interest) and remedies of a waiver by Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Credit and Security Agreement (Sachem Capital Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Loan Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Revolving Advances to Borrower on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hudson Technologies Inc /Ny)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Partythe Credit Parties, Agent and each Purchaser Secured Party and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerCredit Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Credit Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Loan Documents executed by the Note Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Credit Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount (or any component thereof).
(ii) extend the maturity of any Note Revolving Credit Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Secured Party and shall be binding upon the Note Credit Parties, the Purchasers and Agent Secured Parties and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent Credit Parties and Purchasers Secured Parties shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which that was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consent, waiver event PNC elects to require any Lender to assign its interest to PNC or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained inDesignated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and consents required by, Section 16.3(c)), all of such Lender will assign its interests, rights and obligations with respect interest to PNC or the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(cDesignated Lender no later than five (5) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Virco MFG Corporation)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Guarantors, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by each of the Issuer’sparty or parties making such representations, Agent’s and each Purchaser’s respective officerswarranties or guarantees. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Borrower and in accordance with this Agreement. Each Note Party each Guarantor acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Ancillary Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Ancillary Documents executed by the Note PartiesBorrower and each Guarantor, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent Agent, Borrower or the Note Parties Guarantors thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all the Lenders:
(i) increase the maximum dollar commitment Commitment Percentages of any Purchaser unless consented to Lender or alter any provision in writing by such Purchaserrespect of the sharing of Obligations and duties among Agent and Lenders or among the Lenders.
(ii) increase the Maximum Revolving Advance Amount or the Term Loan;
(iiiii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser17.2(b);
(v) release any Collateral other than in compliance with Article XV of the Loan Agreement;
(vi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(vii) waive the conditions precedent contained in Section 8.1(k) or Section 8.2(e) hereof. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Guarantors, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Oil & Gas Revolving Credit and Term Loan Agreement (Transtexas Gas Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect would:
(i) consent of all Lenders: increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note Lender or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionMaximum Loan Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Berliner Communications Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, or the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest (other than as a result of waiver of the Default Rate) or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Secured Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Revolving Advances to Borrowers on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Secured Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Hutchinson Technology Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Party, Agent Borrower and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’s, Agent’s Borrower's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Agent with the consent in writing of the Required Purchasers) and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent Lender or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no . Any such supplemental agreement shall be effective if the effect would:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers Borrowers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent Borrowers and Purchasers Lender shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to 10% of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). Notwithstanding anything If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances; provided that, if Lender does make Out-of-Formula Loans, Agent shall not be deemed thereby to have changed the limits of Section 2.1
(a) For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the contrary hereinfact that the Formula Amount was unintentionally exceeded for any reason, no Defaulting Purchaser shall have any right including, but not limited to, Collateral previously deemed to approve be either "Eligible Receivables", "Eligible Inventory", or disapprove any amendment"Eligible Real Property", waiver as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or consent hereunder (and any amendment, waiver overadvances are made to protect or consent which by its terms requires preserve the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than 10%, Borrowers shall decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (iand not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Borrowers, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to the Borrowers which the Agent, in its reasonable business judgment, deems necessary or agree desirable (a) to preserve or protect the Collateral, or any amendment theretoportion thereof, (iib) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Advances and other Obligations, or (iii) to pay any other amount chargeable to the Required Purchasers have agreed Borrowers pursuant to such consentthe terms of this Agreement; provided, waiver or amendment, then with respect that at any time after giving effect to any Purchaser that has such Revolving Advances the outstanding Revolving Advances do not so consented exceed one hundred and ten percent (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject 110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Gencor Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed 105% of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser Lender shall not be required respond or reply to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 Agent in writing within ten (10) Business Days of any request therefor by the Agentdelivery of such request, the Issuer or any Purchaser, the Non-Consenting Purchaser such Lender shall automatically be deemed to have consented to matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and delivered Agent. Notwithstanding the foregoing, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to the lesser of 105% of the Formula Amount or $1,000,000 for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be "Eligible Receivables" becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than 10%, Agent shall decrease such Assignment excess in as expeditious a manner as is practicable under the circumstances and Assumptionnot inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. Nothing herein shall be deemed to restrict the ability of Revolving Advances to be deemed to be made pursuant to the second sentence of Section 2.2.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Bentley Systems Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender, the Commitment Amount of any Lender or the Maximum Loan Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) release the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything In addition to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent time that any of the other applicable Purchasers other than Defaulting Purchasers)conditions precedent set forth in Section 8.2 hereof have not been satisfied, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred make Revolving Advances to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions Borrower on behalf of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained in, and consents required by, Section 16.3(c)), all terms of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionthis Agreement.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ante5, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Administrative Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Administrative Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Administrative Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Administrative Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender, or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Administrative Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, or adversely affect total of Revolving Advances outstanding hereunder would exceed the rights, duties, liabilities or indemnities of Formula Amount;
(vii) increase the Agent, unless consented to Advance Rate above the Advance Rate in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Administrative Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Administrative Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Administrative Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Administrative Agent in writing within ten (10) business days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Administrative Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to PNC or to another Lender or to any other Person designated by Administrative Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of its Notessuch notice pursuant to a Commitment Transfer Supplement executed by such Lender, accrued interest thereonPNC or the Designated Lender, accrued fees as appropriate, and all other amounts payable Administrative Agent. The Administrative Agent is hereby authorized by the Borrowers and the Lenders, from time to it hereunder time in the Administrative Agent's sole discretion, (A) after the occurrence and under during the continuation of a Default or an Event of Default, or (B) at any time that any of the other Note Documents (including applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to the full amount Borrowers on behalf of the Prepayment PremiumLenders which the Administrative Agent, if anyin its reasonable business judgment, under Section 2.4(b)deems necessary or desirable (a) from to preserve or protect the assignee Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) to pay any other amount chargeable to the extent of such outstanding principal and accrued interest and fees) or the Issuer (Borrowers pursuant to the extent amounts are due and owing terms of this Agreement; provided, that at any time after giving effect to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation ifRevolving Advances the outstanding Revolving Advances do not exceed one hundred percent (100%) of the Formula Amount; and provided further, prior theretothat, as a result following any Event of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required Default pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent10.23 hereof which has not been cured, the Issuer or any Purchaserexercise of the Administrative Agent's discretion, as permitted hereby, to make Revolving Advances to the NonBorrowers on behalf of the Lenders shall be limited to the period beginning on the date that the Administrative Agent has been notified of such Event of Default and ending forty-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionfive (45) days thereafter.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Comforce Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented Lender or increase the Maximum Revolving Advance Amount other than pursuant to in writing by such Purchaser;the provisions of Section 2.25 hereof.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;Ten Million and 00/100 Dollars ($10,000,000.00).
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agentsum of the Revolving Advances outstanding and the Dollar Equivalent amount of Letters of Credit outstanding hereunder would exceed (x) the Maximum Revolving Advance Amount or (y) the Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Loan Party from the Obligations under this Agreement, the applicable Guaranty, if any, or adversely affect the rightsany Other Document.
(ix) alter, duties, liabilities amend or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; modify Section 11.5 hereof. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that voluntarily permit the outstanding Revolving Advances and the Dollar Equivalent amount of Letters of Credit outstanding at any time to exceed one hundred and five percent (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii105%) of Section 16.2the Formula Amount for up to thirty (30) consecutive Business Days provided that such outstanding Advances do not exceed the Maximum Revolving Advance Amount. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (a) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (i) to preserve or protect the Issuer has requested that the Purchasers consent to a departure Collateral, or waiver of any provisions of the Note Documents or agree to any amendment theretoportion thereof, (ii) to enhance the consentlikelihood of, waiver or amendment in question requires maximize the agreement amount of, repayment of all the Purchasers Advances and other Obligations, or (iii) to pay any other amount chargeable to the Required Purchasers have agreed Borrowers pursuant to such consentthe terms of this Agreement; provided, waiver or amendment, then with respect that at any time after giving effect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”)Revolving Advances, the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser outstanding Revolving Advances and the Agent, require such Non-Consenting Purchaser to sell, without recourse Dollar Equivalent amount of Letters of Credit outstanding do not exceed one hundred five percent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject 105%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) Formula Amount or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionMaximum Revolving Advance Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written amendments or supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$2,500,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances plus the aggregate Maximum Undrawn Amount outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser may be effected with to another Lender or to any other Person designated by the consent of Agent (the applicable Purchasers other than Defaulting Purchasers“Designated Lender”), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser for a price equal to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through the then outstanding principal amount thereof plus (iiiii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of Section 16.2such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. In the event that the Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied by that Lender but has been approved by the Required Lenders, or in the event that a Lender (other than PNC) requests additional compensation under Sections 3.7, 3.8, 3.9 or 3.10, then the Borrowing Agent may, at its option and at its sole cost and expense, require such Lender (other than PNC) to assign, without recourse, its interest in the Advances to one or more banks or financial institutions selected by Borrowing Agent and reasonably acceptable to Agent who wish to become a Lender under this Agreement (each, a “Borrowing Agent Designated Lender"), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions then outstanding principal amount of the Note Documents or agree to any amendment thereto, Advances plus (ii) accrued and unpaid interest and fees due such Lender. In the consentevent the Borrowing Agent elects to require any Lender to assign its interest to a Borrowing Agent Designated Lender, waiver the Borrowing Agent will so notify such Lender and Agent in writing within forty-five (45) days following such Lender’s denial or amendment in question requires request for additional compensation, and such Lender will assign its interest to a Borrowing Agent Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, the agreement Borrowing Agent Designated Lender, and the Agent provided that the Borrowers have reimbursed such Lender for its increased costs for which it is entitled to reimbursement under this Agreement through the date of all such sale and assignment. Notwithstanding the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaserforegoing, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall Lender will not be required to consummate make any such sale or delegation assignment if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser Lender or otherwise, the circumstances entitling the Issuer Borrowing Agent to require such sale and delegation assignment cease to apply.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed an amount equal to the sum of (i) the Formula Amount at such time by up to 10% of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any Non-Consenting Purchaser reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances plus the aggregate Maximum Undrawn Amount to exceed the Formula Amount by more than 10%, Agent shall refuse use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or fail an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 have not been satisfied, to execute and deliver any Assignment and Assumption required pursuant make Revolving Advances to Section 16.3 within ten (10) Business Days Borrowers on behalf of any request therefor by the Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to have executed and delivered pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Assignment and AssumptionRevolving Advances the outstanding Revolving Advances plus the aggregate Maximum Undrawn Amount do not exceed 110% of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Tecumseh Products Co)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents (other Note Documents than any supplement to any Lender-Provided Interest Rate Hedge) executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, (x) without the effect wouldconsent of each Lender affected thereby:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, release any First Priority Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances and Swing Loans outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the AgentFormula Amount; or
(vii) release any Guarantor; or (y) amend, unless consented to in writing by modify or waive any provision Section 2.23 or any other provision affecting Swing Loans without the Required Purchasers and Agent; prior written consent of PNC. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or
(c) any other provision of this Agreement, Agent may be effected with at its Permitted Discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and outstanding Swing Loans at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, then such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, then neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.2.1
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Goodman Networks Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then NCBC may, at its option, require such Lender to assign its interest in the Advances to NCBC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that (x) voluntarily permit the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions sum of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser outstanding Revolving Advances and the Agent, require such Non-Consenting Purchaser Maximum Undrawn Amount at any time to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable sum of (i)] the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 6.5(f) hereof at such time (such sum, the “Overadvance Threshold Amount”)] by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding principal Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from to make Revolving Advances to Borrowers on behalf of the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to have executed pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and delivered such Assignment and Assumptionten percent (110%) of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Sparton Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) except in connection with any increase pursuant to Section 2.24 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaserwithout the consent of all Lenders;
(ivv) in alter, amend or modify the provisions of Section 11.5 hereof without the consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(ivi) release all or substantially all of the Collateral (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (iithis Agreement) release without the consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders directly affected thereby;
(vvii) change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of the Agent, or adversely affect Maximum Revolving Advance Amount without the rights, duties, liabilities or indemnities consent of all Lenders;
(viii) increase the Agent, unless consented to Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date without the consent of all Lenders; or
(ix) release any Borrower without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from the consent Loan Parties. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such PurchaserOut-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, “Eligible Insured Foreign Receivables”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to the Loan Parties pursuant to the terms of this Agreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such consentProtective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), waiver or amendmentany such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyCredit Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sCredit Parties’, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party acknowledges Credit Parties acknowledge that it has they have been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Credit Parties may, subject to the provisions of this Section 16.2(b14.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Credit Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder by Borrowers or under any other Note Document, in each case, unless consented Credit Party to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b14.2(b);
(iii) unless consented to release any Collateral during any calendar year (other than in writing by each Purchaseraccordance with the provisions of this Agreement) having an aggregate value in excess of $2,000,000;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(v) release any Guarantor.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Credit Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Credit Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Term Loan Credit and Security Agreement (Hudson Technologies Inc /Ny)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writingwriting and executed by the party or parties making such promises, signed by each of the Issuer’srepresentations, Agent’s and each Purchaser’s respective officerswarranties or guarantees. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;
five hundred thousand dollars ($500,000); (v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.;
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Swank Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans "). If Agent is willing in its sole expense and effortabsolute discretion to make such Out-of-Formula Loans, upon notice such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section
(a) For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such Non-Consenting Purchaser excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrower on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Badger Paper Mills Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the written consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the written consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the written consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Advance Amount without the written consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaseror any provision of this Agreement that requires the consent of all Lenders without the written consent of all Lenders;
(ivv) in alter, amend or modify the provisions of Section 11.5 hereof without the written consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(ivi) release all or substantially all of the Collateral or any Guarantor under any Guaranty (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (iithis Agreement) release without the written consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(vvii) change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of the Agent, or adversely affect Maximum Revolving Advance Amount without the rights, duties, liabilities or indemnities written consent of all Lenders;
(viii) increase the Agent, unless consented to Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentNinthTenth Amendment Effective Date without the written consent of all Lenders; or
(ix) release any Borrower without the written consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from the consent Loan Parties. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such ▇▇▇▇▇▇’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such PurchaserOut-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, “Eligible Insured Foreign Receivables”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to the Loan Parties pursuant to the terms of this Agreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such consentProtective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), waiver or amendmentany such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the written consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the written consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the written consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Advance Amount without the written consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaseror any provision of this Agreement that requires the consent of all Lenders without the written consent of all Lenders;
(ivv) in alter, amend or modify the provisions of Section 11.5 hereof without the written consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(ivi) release all or substantially all of the Collateral or any Guarantor under any Guaranty (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (iithis Agreement) release without the written consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(vvii) change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of the Agent, or adversely affect Maximum Revolving Advance Amount without the rights, duties, liabilities or indemnities written consent of all Lenders;
(viii) increase the Agent, unless consented to Advance Rates above the Advance Rates in writing by effect on the Required Purchasers Amendment and AgentRestatement Date without the written consent of all Lenders; or
(ix) release any Borrower without the written consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from the consent Loan Parties. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such PurchaserOut-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, “Eligible Insured Foreign Receivables”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to the Loan Parties pursuant to the terms of this Agreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such consentProtective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), waiver or amendmentany such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than 30 consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed 105% of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), without recourse (in accordance with and subject for a price equal to the restrictions contained inthen outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within 45 days following such Lender's denial, and consents required bysuch Lender will assign its interest to PNC or the Designated Lender no later than five days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Section 16.3(c))PNC or the Designated Lender, all as appropriate, and Agent. Notwithstanding (a) the existence of its interestsa Default or an Event of Default, rights and obligations with respect to the Notes or Commitments (b) that is the subject any of the related consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, waiver Agent may at its discretion and amendment and without the related Note Documents consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 8.1(bb) hereof at such time (such sum, the "Overadvance Threshold Amount") by up to 105% of the Overadvance Threshold Amount for up to 30 consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding principal of Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount or Overadvance Threshold Amount by more than 5%, Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (including and not in substitution of) the full amount discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (b) at any time that any of the Prepayment Premiumother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, if any, under Section 2.4(b)) from the assignee (to make Revolving Advances to the extent Borrowers on behalf of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (b) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) to have executed and delivered pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement; PROVIDED, THAT at any time after giving effect to any such Assignment and AssumptionRevolving Advances the outstanding Revolving Advances do not exceed 105% of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Waxman Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or any of the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any covenant, obligation or Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$500,000;
(v) change the rights and duties of Agent;
(vi) permit any Out-of-Formula Loan to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect exceed $1,000,000; or
(vii) increase the rights, duties, liabilities or indemnities of Advance Rate above the Agent, unless consented to Advance Rate in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) Business Days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal of amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (PNC or to the extent Designated Lender, PNC will so notify such Lender in writing within forty-five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Eltrax Systems Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent and in accordance with Borrowing Agent may modify this AgreementAgreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the written consent in writing of Required Lenders, and the Required Purchasers) and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the written consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the written consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Advance Amount without the written consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaseror any provision of this Agreement that requires the consent of all Lenders without the written consent of all Lenders;
(ivv) in alter, amend or modify the provisions of Section 11.5 hereof without the written consent of each case, other than in connection with a transaction permitted under Section 7.1, Lender directly and adversely affected thereby;
(ivi) release all or substantially all of the Collateral or any Guarantor under any Guaranty (other than in any transaction or series accordance with the provisions of related transactions, unless consented to in writing by each Purchaser or (iithis Agreement) release without the written consent of all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(vvii) change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of the Agent, or adversely affect Maximum Revolving Advance Amount without the rights, duties, liabilities or indemnities written consent of all Lenders;
(viii) increase the Agent, unless consented to Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentTenthSixteenth Amendment Effective Date without the written consent of all Lenders; or
(ix) release any Borrower without the written consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from the consent Loan Parties. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such ▇▇▇▇▇▇’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such PurchaserOut-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, “Eligible Insured Foreign Receivables”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to the Loan Parties pursuant to the terms of this Agreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such consentProtective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), waiver or amendmentany such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between among each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the applicable Credit Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents (other Note Documents than with respect to Cash Management Products and Services and Lender-Provided ▇▇▇▇▇▇, other similar agreements or the Fee Letter, which shall require only the consent of the parties thereto) executed by the Note applicable Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Credit Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Entire Understanding. (a) This Agreement and the documents Other Documents executed concurrently herewith contain the entire understanding between and among each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each the respective officers of the Issuer’sparty making such promises, Agent’s and each Purchaser’s respective officersrepresentations, warranties, or guarantees. Neither this Agreement nor any Other Document nor any portion or provisions hereof or thereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this AgreementAgreement or any Other Document.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of letter of credit fees (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Revolving Amount without the consent of all Lenders;
(iv) alter the definition of the term “Required Purchasers Lenders” or alter, amend or modify this Section 16.2(b17.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 12.2 without the consent of all Lenders;
(vi) release and/or subordinate Agent’s Liens on any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to clause (e) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Borrowing Base for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the AgentBorrowing Base without the consent of each Lender directly affected thereby;
(ix) increase the Applicable Advance Rates above the Applicable Advance Rates in effect on the Closing Date or alter the definition of “Eligible Mortgage Loans” in a manner that has the effect of increasing the Borrowing Base, unless consented in any case, without the consent of all Lenders;
(x) release any Loan Party without the consent of all Lenders; or
(xi) permit Borrower to in writing by assign or transfer any of its rights or obligations under this Agreement without the Required Purchasers prior written consent of Agent and Agent; each Lender.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 17.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be effected with paid when collected from Loan Parties. In the consent event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default,(ii) that any of the other applicable Purchasers conditions precedent set forth in Section 9.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Borrowing Base by up to ten percent (10%) of the Borrowing Base for up to thirty (30) consecutive days (the “Out-of-Formula Loans”); provided, that, Required Lenders may at any time revoke Agent’s authorization to make or permit Out-of- Formula Loans under this Section 17.2(e) and any such Purchaserrevocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect of any amendments referred accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary Overadvances that may result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Mortgage Loans”, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or Overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Borrowing Base by more than ten percent (10%), Agent shall use its efforts to have Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary Overadvances shall be deemed to be involuntary Overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 17.2(e), Agent may elect in its discretion to fund such Out-of- Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 17.2, Agent is hereby authorized by Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) whether any of the consentother applicable conditions precedent set forth in Section 9.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, to make Revolving Advances (“Protective Advances”) to Loan Parties on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Required Purchasers have agreed Collateral, or any portion thereof, (b) to such consentenhance the likelihood of, waiver or amendmentmaximize the amount of, then with respect repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Loan Parties pursuant to the terms of this Agreement; provided, that the aggregate amount of all Protective Advances and Out-of-Formula Loans shall not exceed ten percent (10%) of the Maximum Revolving Amount and, provided, further, that at any time after giving effect to any Purchaser that has not so consented (such Purchaser, a “NonProtective Advances and any outstanding Out-Consenting Purchaser”)of-Formula Loans, the Issuer may, at its sole expense and effort, upon notice outstanding Revolving Advances do not exceed the Maximum Revolving Amount. Lenders holding the Revolving Commitments shall be obligated to fund such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee Protective Advances (to the extent permitted above) and effect a settlement with Agent therefor upon demand of such outstanding principal and accrued interest and fees) or the Issuer (to Agent in accordance with their respective Revolving Commitment Percentages. To the extent amounts any Protective Advances are due not actually funded by the other Lenders as provided for in this Section 17.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to the Non-Consenting Purchaser in excess Agent, and Agent shall be entitled to all rights (including accrual of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result interest) and remedies of a waiver by Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Party's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion ▇▇▇ ▇▇rtion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) increase the Maximum Formula Amount or the Maximum Revolving Advance Amount;
(iii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any scheduled principal payment or fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser17.2(b);
(v) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000;
(vi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the AgentFormula Amount;
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(ix) alter, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether amend or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of modify Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption6.
Appears in 1 contract
Sources: Loan and Security Agreement (Bucyrus International Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the scheduled due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than Collateral, the disposition of which is dealt with elsewhere in connection with a transaction permitted under this Agreement, including without limitation Section 7.1, (i4.3) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$500,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the AgentFormula Amount;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viii) release any Guarantor, unless consented to other than in writing by accordance with the Required Purchasers and Agent; terms of this Agreement. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender fails to respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consentevent PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, waiver PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or amendment in question requires the agreement Designated Lender no later than five (5) days following receipt of all such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Purchasers Designated Lender, as appropriate, and Agent. Notwithstanding (iiia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers have agreed Lenders, voluntarily permit the outstanding Revolving Advances at any time to such consent, waiver or amendment, then with respect exceed the Formula Amount by up to any Purchaser that has not so consented ten percent (such Purchaser, a 10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “NonOut-Consenting Purchaserof-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the Issuer maydiscretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at its sole expense and effortany time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, upon notice to such Non-Consenting Purchaser and make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Katy Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrowers, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer each Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties any Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if (x) --------- ------- amend Sections 6.5, 6.6, 6.7, 6.8, 6.9, 6.10 or 7.6 without the effect wouldconsent of 67% of the Lenders or (y) without the consent of all the Lenders:
(i) increase or decrease the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Loan Amount or the Advance Rates.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder by Borrowers to Agent or under any other Note Document, in each case, unless consented Lenders pursuant to in writing by each Purchaser directly and adversely affected thereby;this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the any Collateral in during any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the calendar year having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$100,000.
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser of the Lenders and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers the Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Radnor Holdings Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each PurchaserOne Million Dollars ($1,000,000);
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option and so long as no Default on Event of Default is then continuing with the prior consent of Borrowing Agent, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting Purchasers)Required Lenders, except that (x) voluntarily permit the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions sum of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser outstanding Revolving Advances and the Agent, require such Non-Consenting Purchaser Maximum Undrawn Amount at any time to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable Formula Amount at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding principal Revolving Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables,” “Eligible Unbilled Receivables” or “Eligible Finished Goods Inventory” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its Notes, accrued interest thereon, accrued fees and all other amounts payable efforts to it hereunder and have Borrowers decrease such excess in as expeditious a manner as is practicable under the other Note Documents (including circumstances and not inconsistent with the full amount reason for such excess. Revolving Advances made after Agent has determined the existence of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser involuntary overadvances shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and the Lenders, from time to time in Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have executed not been satisfied, to make Revolving Advances to Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and delivered other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Assignment Revolving Advances the outstanding Revolving Advances do not exceed one hundred and Assumptionten percent (110%) of the Formula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emtec Inc/Nj)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) extend the maturity of any Note or the scheduled due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$100,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC, Agent or the Designated Lender, as appropriate. Notwithstanding the foregoing, Agent may at its discretion and without recourse the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionpreceding sentence.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Dreamlife Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between each Note Partythe Credit Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each Purchaserthe applicable ▇▇▇▇▇▇’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Credit Parties signatory hereto may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note such Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note such Credit Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentages or the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the amount of any Delayed Draw Term Loan;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) alter, amend or modify the provisions of Section 11.5 hereof;
(vi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(vii) release any Guarantor.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Credit Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.the
Appears in 1 contract
Sources: Sixth Amendment and Waiver to Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage, or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Loan Amount (except in accordance with Section 2.24) without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agent, consent of all Lenders;
(viii) Subject to the provisions set forth below permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days in any ninety (90) consecutive day period or adversely affect exceed the rights, duties, liabilities or indemnities lesser of (1) one hundred and five percent (105%) of the AgentFormula Amount and (2) the Maximum Loan Amount without the consent of all Lenders;
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date, unless consented to increase the sublimits set forth in writing by the Required Purchasers and AgentFormula Amount or alter the definitions of Eligible Receivables, Eligible Off-load Receivables, Eligible Inventory, Eligible In-Transit Inventory, Eligible On-Track Inventory or Eligible In-Tank Inventory in a manner that would increase the Formula Amount without the consent of Supermajority Lenders;
(x) release any Borrower or Guarantor (except as permitted herein) without the consent of all Lenders; or
(xi) amend or modify the pro rata treatment of Lenders as set forth in Section 2.20 hereof without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(d) If any action to be taken by Agent or Lenders hereunder requires unanimous consent and a Lender fails to give its consent, then provided that the Required Lenders have provided such consent, authorization or agreement, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. Notwithstanding anything In the event PNC elects to require any Lender to assign its interest to PNC or to the contrary hereinDesignated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no Defaulting Purchaser shall have later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of such Purchaserany Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (y5%) of the Formula Amount for up to thirty (30) consecutive Business Days in any waiver, amendment or modification requiring ninety (90) consecutive day period so long as the consent aggregate Revolving Advances (including Out-of-Formula Loans) do not exceed the lesser of all Purchasers or each affected Purchaser that by its terms materially (1) one hundred and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require five percent (105%) of the consent of such Defaulting Purchaser Formula Amount and (x2) the consent Maximum Loan Amount minus the Maximum Undrawn Amount of any Defaulting Purchaser Letters of Credit minus the outstanding balance of Swing Loans (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables”, “Eligible Off-load Receivables”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible On-Track Inventory” or “Eligible In-Tank Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, at any time in the Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions Default or termination of the Note Documents commitments of Lenders to make Revolving Advances hereunder for any reason, or agree to any amendment thereto, (ii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of the consentLenders which Agent, waiver in its reasonable business judgment, deems necessary or amendment in question requires desirable (a) to preserve or protect the agreement Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement (the “Protective Advances”); provided, that the Protective Advances made hereunder shall not exceed five percent (5%) of the Maximum Loan Amount and provided further that at any time after giving effect to any such Protective Advances, the outstanding Revolving Advances, Swing Loans and Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed the Purchasers Maximum Loan Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (iiiincluding accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Required Purchasers have agreed to such consent, waiver or amendment, then Other Documents with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consentevent PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, waiver PNC will so notify such Lender in writing within forty-five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or amendment in question requires the agreement Designated Lender no later than five (5) days following receipt of all such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Purchasers Designated Lender, as appropriate, and Agent. Notwithstanding (iiia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers have agreed Lenders, voluntarily permit the outstanding Revolving Advances at any time to such consent, waiver or amendment, then with respect exceed the Formula Amount by up to any Purchaser that has not so consented ten percent (such Purchaser, a 10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “NonOut-Consenting Purchaserof-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the Issuer maydiscretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Export Related Accounts Receivables” or “Eligible Export Related Finished Goods Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at its sole expense and effortany time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, upon notice to such Non-Consenting Purchaser and make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Export Import Revolving Credit and Security Agreement (Fairchild Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) except in connection with any increase pursuant to Section 2.25 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to clauses (e) and (f) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount without the consent of all Lenders; or
(ix) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender fails to respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the Purchasers consent event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within fortyfive (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a departure Commitment Transfer Supplement executed by such Lender, Agent or waiver the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of any provisions a Default or an Event of the Note Documents or agree to any amendment theretoDefault, (ii) that any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the Required Purchasers consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have agreed changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be any of “Eligible Receivables,” “Eligible Inventory,” “Eligible Vendor Receivables,” “Eligible Credit Card Receivables” or “Eligible Fuel Inventory,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such consentexcess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), waiver or amendmentAgent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, at any Purchaser that has time in the Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not so consented been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (such Purchaseriii) any other contrary provision of this Agreement, a to make Revolving Advances to Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement (the “Non-Consenting PurchaserProtective Advances”); provided, that the Protective Advances made hereunder shall not exceed one hundred ten percent (110%) of the Formula Amount in the aggregate and provided further that at any time after giving effect to any such Protective Advances, the Issuer may, at its sole expense outstanding Revolving Advances and effort, Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed the Maximum Revolving Advance Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and subject owing to the restrictions contained inAgent, and consents required by, Section 16.3(c)), Agent shall be entitled to all rights (including accrual of its interests, rights interest) and obligations remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (ARKO Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent Guarantors and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by each of the Issuer’sparty or parties making such representations, Agent’s and each Purchaser’s respective officerswarranties or guarantees. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Borrower and in accordance with this Agreement. Each Note Party each Guarantor acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Ancillary Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Agent with the consent in writing of the Required Purchasers) Lender and Issuer Borrower may, subject to the provisions of this Section 16.2(b14.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Note or the other Note Ancillary Documents executed by the Note PartiesBorrower and each Guarantor, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLender, Agent Borrower or the Note Parties Guarantors thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no . Any such supplemental agreement shall be effective if the effect would:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note PartiesBorrower, the Purchasers Guarantors and Agent Lender and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent Guarantors and Purchasers Lender shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Oil & Gas Term Loan Agreement (American Real Estate Partners L P)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between among each Note Loan Party, each Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Parties', Agent’s Agents' and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Collateral Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions provisions, amending any provision, consenting to non-compliance with any provision or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Collateral Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender, the Maximum Revolving Advance Amount or the Maximum Loan Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Loan Parties to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release all or any substantial portion of the Collateral (other than in connection accordance with a transaction permitted under Section 7.1, (i) release all or substantially all the provisions of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;this Agreement).
(v) change the rights and duties of Collateral Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed 105% of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Collateral Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Collateral Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Collateral Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Collateral Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Collateral Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then M&T Bank may, at its option, require such Lender to assign its interest in the Advances to M&T Bank or to another Lender or to any other Person designated by Collateral Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Loan Parties. In the event M&T Bank elects to require any Lender to assign its interest to M&T Bank or to the Designated Lender, M&T Bank will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to M&T Bank or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, M&T Bank or the Designated Lender, as appropriate, and Collateral Agent.
(a) whether there exists a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Collateral Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to 5.0% of the Formula Amount for up to sixty (60) consecutive Business Days (the "Out-of-Formula Loans"). If Collateral Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, such Out-of-Formula Loans shall be
(a) For purposes of this paragraph, the discretion granted to Collateral Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Collateral Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than 5.0%, Collateral Agent shall use its efforts to have Loan Parties decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Collateral Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Collateral Agent is hereby authorized by Loan Parties and the Lenders, from time to time in Collateral Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of the Lenders which Collateral Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Loan Parties pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed 105% of the Formula Amount. Upon the written request of Borrower Agent, Collateral Agent, so long as no Event of Default is then outstanding, shall have the option (without any duty or obligation of any kind) to increase the Maximum Revolving Advance Amount, provided, however, that (i) such increase, together with any previous increases pursuant to this clause, shall not raise the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment theretoMaximum Revolving Advance Amount in an amount greater than $3,000,000, (ii) no Lender's Commitment Percentage of the Maximum Revolving Advance Amount or the maximum amount such Lender is obligated to loan to Borrowers hereunder shall be increased without such Lender's written consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed only an existing Lender may participate in such increase and (iv) upon consummation of such modification Collateral Agent shall forward to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, all Lenders a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject revised list of the related consent, waiver and amendment and Commitment Percentages reflecting such changes in the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionMaximum Revolving Advance Amount.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Partythe Loan Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer each Loan Party may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties any Loan Party thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) i. increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) . extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under by any other Note Document, in each case, unless consented Loan Party to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) . alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
iv. release any Collateral during any calendar year (iv) in each case, other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) v. change the rights and duties of Agent.
vi. permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
vii. increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
viii. release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Partieseach Loan Party party thereto, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”), except provided that (x) such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect of any amendments referred payable on demand and shall bear interest at the Default Rate; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented make Revolving Advances (such Purchaser, a Revolving Advances being referred to as “Non-Consenting PurchaserAgent Advances”), ) to Borrowers on behalf of the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to any Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (TCP International Holdings Ltd.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Party, Agent and each Purchaser and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’s, Agent’s and each Purchaser’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreement. Each Note Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Agent with the consent in writing of the Required Purchasers) and Issuer may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Documents executed by the Note Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Purchasers, Agent or the Note Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect would:
(i) increase the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; 60358086_160358086_13 Any such supplemental agreement shall apply equally to each Purchaser and shall be binding upon the Note Parties, the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Note Parties, Agent and Purchasers shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any 60358086_160358086_13 request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, Maximum Revolving Advance Amount or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note Revolving Credit Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto (aa) the Agent, total of Export-Related Revolving Advances outstanding hereunder would exceed the Export-Related Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Export-Related Formula Amount or (bb) the total of Non-Guaranteed Revolving Advances outstanding hereunder would exceed the Non-Guaranteed Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) the Non-Guaranteed Formula Amount.
(vii) increase the Non-EXIM Receivables Advance Rate or the Advance Rates above the rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release of any guaranties. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have disapproved of such matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers)request. Notwithstanding the foregoing, except that Agent may voluntarily permit the outstanding Export-Related Revolving Advances at any time to exceed the Export-Related Formula Amount by up to one hundred and five percent (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii105%) of Section 16.2. In the event Export-Related Formula Amount, provided that (i) the Issuer has requested that the Purchasers consent to a departure or waiver aggregate amount of any provisions such permitted overadvance (each, a "Permitted Overadvance") does not exceed five percent (5%) of the Note Documents or agree to any amendment theretoMaximum Export-Related Revolving Advance Amount, (ii) the consent, waiver or amendment in question requires the agreement aggregate amount of all Export-Related Revolving Advances including Permitted Overadvances does not exceed the Purchasers Maximum Export-Related Revolving Advance Amount, and (iii) such Permitted Overadvances are not outstanding for more than ninety (90) consecutive days. For purposes of the Required Purchasers have agreed preceding sentence, the discretion granted to such consentAgent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Export-Related Formula Amount was unintentionally exceeded for any reason, waiver including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or amendment"Eligible Inventory", then with respect as applicable, becomes ineligible, collections of Receivables applied to any Purchaser that has not so consented reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Export-Related Revolving Advances to exceed the Export-Related Formula Amount by more than five percent (such Purchaser, a “Non-Consenting Purchaser”5%), Agent shall endeavor to have Borrower decrease such excess in as expeditious a manner as is practicable under the Issuer may, at its sole expense circumstances and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply not inconsistent with the provisions of Section 16.3(c) and (2) reason for such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionexcess.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Robotic Vision Systems Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (i) release all or substantially all the provisions of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;this Agreement.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole expense and effortabsolute discretion to make such Out-of-Formula Loans, upon notice such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such Non-Consenting Purchaser excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrower on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (P&f Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$500,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount or Overadvance Threshold Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Revolving Advances to Borrowers on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hybrook Resources Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b)Section, from time to time time, enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect would:
consent of all Lenders (i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;
Lender or the Maximum Advances Amount, (ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Documentby Borrower to Lenders pursuant to this Agreement, in each case, unless consented to in writing by each Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
Section, (iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee$100,000.00, unless consented to in writing by each Purchaser;
(v) change the rights and duties of the Agent, (vi) permit any Revolving Advance or adversely affect Term Advance to be made if after giving effect thereto the rights, duties, liabilities or indemnities total Advances outstanding hereunder would exceed one hundred five percent (105%) of the Agentmaximum Advances capable of being borrowed hereunder for more than sixty (60) consecutive Business Days, unless consented to (vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date, or (viii) release any guarantor or other third party obligor for the Obligations or any part thereof. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to CoBank or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent elects to require any Lender to assign its interest to CoBank or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to CoBank or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, CoBank or the Designated Lender, as appropriate, and Agent. Notwithstanding (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions of the Note Documents or agree to any amendment theretoDefault, (ii) that any of the consent, waiver other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or amendment in question requires the agreement of all the Purchasers and (iii) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers have agreed Lenders, voluntarily permit the outstanding Revolving Advances and Term Advances at any time to exceed the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit, by up to ten percent (10%) of such consent, waiver or amendment, then with respect sum for up to any Purchaser that has not so consented thirty (such Purchaser, a 30) consecutive Business Days (the “NonOut-Consenting Purchaserof-Formula Advances”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Advances, such Out-of-Formula Advances shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances or Term Advances, as applicable, consisting of Domestic Rate Advances; provided that, if Lenders do make Out-of-Formula Advances, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Article II of this Agreement. For purposes of this paragraph, the Issuer maydiscretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Accounts”, “Eligible Hedge Margin Accounts”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Accounts applied to reduce outstanding Revolving Advances or Term Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances or Term Advances to exceed the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances and Term Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances and Term Advances permitted above in this Section, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole discretion, (i) after the occurrence and during the continuation of a Default or an Event of Default, or (ii) at its sole expense any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances and effort, upon notice Term Advances to such Non-Consenting Purchaser and Borrower on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any maximum Revolving Advances capable of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionbeing borrowed hereunder.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (FCStone Group, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between among each Note Loan Party, Agent Agent, each Lender and each Purchaser the Trust and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Party's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender without the consent of each Lender directly affected thereby.
(ii) increase the Maximum Revolving Advance Amount without the consent of each Lender.
(iii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in by Loan Parties to Lenders pursuant to this Agreement without the consent of each case, unless consented to in writing by each Purchaser Lender directly and adversely affected thereby;.
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by without the consent of each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;Lender.
(v) release any Collateral during any calendar year (other than actions consisting of sales, transfers and other dispositions of Collateral specifically permitted in accordance with the provisions of this Agreement) having an aggregate value in excess of Four Million and 00/100 Dollars ($4,000,000.00) without the consent of each Lender.
(vi) change the rights and duties of Agent without the Agent, consent of each Lender.
(vii) permit any Revolving Advance to be made or adversely affect Letter of Credit to be issued if after giving effect thereto the rights, duties, liabilities total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or indemnities exceed one hundred ten percent (110%) of the Agent, unless consented to Formula Amount without the consent of each Lender.
(viii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date without the consent of each Lender.
(ix) release any Guarantor or Individual Guarantor without the consent of each Lender. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser may be effected with to another Lender or to any other Person designated by Agent (the consent of the applicable Purchasers other than Defaulting Purchasers"Designated Lender"), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser for a price equal to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through the then outstanding principal amount thereof plus (iiiii) of Section 16.2accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event that PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (i45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the Issuer has requested existence of a Default or an Event of Default, (b) that the Purchasers consent to a departure or waiver of any provisions of the Note Documents other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or agree to (c) any amendment theretoother provision of this Agreement, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) Agent may at its discretion unless otherwise directed by the Required Purchasers have agreed to such consentLenders, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”)voluntarily permit the sum of the outstanding Revolving Advances, the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser outstanding Swing Loans and the Agent, require such Non-Consenting Purchaser Maximum Undrawn Amount at any time to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of exceed an amount equal to the applicable outstanding principal difference of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under (i) the other Note Documents Formula Amount minus (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)ii) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.the
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (General Finance CORP)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Administrative Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Administrative Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Administrative Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Administrative Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender, or the Maximum Revolving Advance Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Administrative Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Advance Rate above the Advance Rate in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Borrower or Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Administrative Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Administrative Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. In the event that Administrative Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by Administrative Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Administrative Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Administrative Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Administrative Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Administrative Agent and/or Lenders do make Out-of-Formula Loans, neither Administrative Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Administrative Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral (subject to the limitations set forth in the next succeeding paragraph in the case of overadvances that are made to protect or preserve the Collateral). In the event Administrative Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Administrative Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Administrative Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. Notwithstanding the foregoing, after Administrative Agent has determined the existence of involuntary overadvances, Administrative Agent and/or Lenders may continue to make Revolving Advances; provided, however, that consent of the Required Lenders shall be required to continue to make Revolving Advances if the aggregate outstanding Revolving Advances (a) exceeds the Formula Amount by more than one hundred and ten percent (110%) for more than ten (10) consecutive Business Days, or (b) exceeds the Formula Amount by less than or equal to one hundred and ten percent (110%) for more than thirty (30) consecutive Business Days (inclusive of any period described in the immediately preceding clause (a), if applicable). In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Administrative Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to the Borrowers on behalf of the Lenders which the Administrative Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and ten percent (110%) of the Formula Amount; and provided further, that, following any Event of Default pursuant to Section 10.23 hereof which has not been cured, the exercise of the Administrative Agent’s discretion, as permitted hereby, to make Revolving Advances to the Borrowers on behalf of the Lenders shall be limited to the period beginning on the date that the Administrative Agent has been notified of such Event of Default and ending forty-five (45) days thereafter. Notwithstanding anything to the contrary contained herein, no Defaulting Purchaser Lenders shall have any right make available to approve Administrative Agent their pro rata share of each Out-of-Formula Loan, each Revolving Advance made after Administrative Agent has determined the existence of involuntary overadvances and each Revolving Advance made to preserve or disapprove any amendmentprotect Collateral and for other purposes provided pursuant to the immediately preceding paragraph, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or in each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (case in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c2.20(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionabove.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Comforce Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders affected thereby:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Parties, the Purchasers Borrowers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder .
(and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (xc) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchasereach, a “Non-Consenting PurchaserLender”), the Issuer then PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Non-Consenting Lender’s denial, and such Non-Consenting Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Additionally, in the event any Lender (other than PNC) (i) requests compensation under Sections 3.7 or 3.9, or requires the Borrowers to pay any additional amount due to any Lender’s status pursuant to Section 3.11 to any Lender or any Governmental Body for the account of any Lender, (iii) is a Defaulting Lender or (iv) is a Non-Consenting Lender referred to in this Section 16.2(c), then in any such event Borrowers may, at their sole expense, upon notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, this Section 16.3(c)16.3), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment under this Agreement and the related Note Other Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the an assignee acceptable to Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) in its sole discretion that shall acquire assume such obligations (any of which assignees assignee may be another PurchaserLender, if a Purchaser Lender accepts such assignment), provided that that:
(1i) Borrowers shall have paid to Agent the assignment fee specified in Section 16.3(e) hereof;
(ii) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser Lender shall have received payment of an amount equal to the applicable outstanding principal of its Notesoutstanding Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Loan Documents (including the full amount of the Prepayment Premium, if any, any amounts under Section 2.4(b)2.17) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the Issuer case of all other amounts);
(to iii) in the extent amounts are due and owing to the Non-Consenting Purchaser case of any such assignment resulting from a claim for compensation under Sections 3.7 or 3.9, such assignment will result in excess of amounts due from the assignee)a reduction in such compensation or payments thereafter; and
(iv) such assignment does not conflict with Applicable Law. A Non-Consenting Purchaser Lender shall not be required to consummate make any such sale assignment or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser Lender or otherwise, the circumstances entitling the Issuer Borrowers to require such sale assignment and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Flotek Industries Inc/Cn/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Loan Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$250,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(vii) increase the Receivables Advance Rate above the Receivables Advance Rate in writing by effect on the Required Purchasers and AgentClosing Date; or
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consentevent PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, waiver PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or amendment in question requires the agreement Designated Lender no later than five (5) days following receipt of all such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Purchasers Designated Lender, as appropriate, and Agent. Notwithstanding (iiia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers have agreed Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such consent, waiver or amendment, then with respect to any Purchaser that has not so consented time (such Purchasersum, a the “NonOveradvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-Consenting Purchaserof-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the Issuer maydiscretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at its sole expense and effortany time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, upon notice to such Non-Consenting Purchaser and make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the Maximum Loan Amount;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iii) alter the definition of the term Required Purchasers Lenders or Eligible Receivables or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days in any ninety (90) consecutive day period or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and seven and one half percent (107.5%) of the Agent, unless consented to Formula Amount;
(vii) increase the Receivables Advance Rate above the Receivables Advance Rate in writing by effect on the Required Purchasers and AgentClosing Date;
(viii) release any Guarantor; or
(ix) change the allocation of payments set forth in Section 11.5. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything If any action to be taken by Agent or Lenders hereunder requires unanimous consent and a Lender fails to give its consent, then provided that the Required Lenders have provided such consent, authorization or agreement, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the contrary hereinDesignated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no Defaulting Purchaser shall later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any right to approve or disapprove any amendmentother provision of this Agreement, waiver or consent hereunder (Agent may at its discretion and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to five percent (5%) of the Formula Amount for up to sixty (60) consecutive Business Days in any ninety (90) consecutive day period (the “Out- of- Formula Loans”), except ; provided that (x) the Commitment of at any time after giving effect to any such Defaulting Purchaser may Revolving Advances, the outstanding Revolving Advances do not be increased or extended without exceed the consent of such Purchaser, (y) any waiver, amendment or modification requiring Maximum Loan Amount less the consent aggregate Maximum Undrawn Amount of all Purchasers or each affected Purchaser that by outstanding Letters of Credit. If Agent is willing in its terms materially sole and adversely affects any Defaulting Purchaser absolute discretion to a greater extent than any other affected Purchaser shall require the consent of make such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out- of- Formula Loans, such Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables”, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (i5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Revolving Advances to Borrowers on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed (x) one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject five percent (105%) of the related consent, waiver and amendment and Formula Amount or (y) the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither Maximum Loan Amount less the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any aggregate Maximum Undrawn Amount of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions all outstanding Letters of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionCredit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between among each Note Credit Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sCredit Party's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Credit Parties may, subject to the provisions of this Section 16.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Credit Parties thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;17.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Credit Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Credit Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 17.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 17.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding the foregoing, Agent may at its discretion and without recourse the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have the Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumptionpreceding sentence.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Sunsource Inc)
Entire Understanding. (a) This Agreement and the documents Other Documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Advances at any time to exceed the Formula Amount required hereof at such time by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Advances to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the Issuer has requested discretionary Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to any amendment thereto, (ii) make Advances to Borrower on behalf of the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Advances the outstanding Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Apac Customer Service Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Credit Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by a Responsible Officer of each of the Issuer’s, Credit Party and Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, amending, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers hereunder or thereunder or the conditions, provisions or terms hereof or thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase or extend the maximum dollar commitment Revolving Commitment, the Revolving Commitment Percentage or the Revolving Commitment Amount of any Purchaser unless consented Lender without the consent of such Lender (it being understood that if a Lender provides its consent to any such increase or extension such Lender may provide that such consent is subject to the completion of its due diligence under Flood Laws in writing by a manner satisfactory to such PurchaserLender);
(ii) waive, extend or postpone the maturity Maturity Date or any date fixed by this Agreement or any Other Document for any scheduled payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) except in connection with any increase pursuant to Section 2.24 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or Supermajority Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing or any provision of this Agreement providing for consent or other action by each Purchaserall Lenders, without the consent of all Lenders;
(ivv) in each casealter, amend or modify the provisions of Section 2.6(e), 2.20, 11.5 or any other than in connection with a transaction provision of this Agreement providing for the pro rata treatment of the Lenders (to the extent such alteration, amendment or modification would affect such pro rata treatment) without the consent of all Lenders;
(vi) except as permitted under by Section 7.114.14, (i) release all or substantially all of the Collateral without the consent of all Lenders;
(vii) other than in any transaction connection with a liquidation, dissolution or series disposition of related transactions, unless a Credit Party permitted by the terms hereof or otherwise consented to by Required Lenders or the payment in writing full of the Obligations, release any Credit Party from its liability for the Obligations without the consent of all of the Lenders;
(viii) except in connection with the sale or disposition of a Guarantor consented to by each Purchaser Required Lenders, release the Guaranty by a Guarantor without the consent of all of the Lenders; or
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date or otherwise modify the Formula Amount or Gross Amount if the effect to increase the amount available to be borrowed by Borrowers without the consent of the Supermajority Lenders. Notwithstanding the foregoing:
(A) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Issuer, or any other rights or duties of Issuer under this Agreement or the Other Documents, without the written consent of Issuer, Agent, Borrowers and the Required Lenders;
(B) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Swing Loan Lender, or any other rights or duties of Swing Loan Lender under this Agreement or the Other Documents, without the written consent of Swing Loan Lender, Agent, Borrowers and the Required Lenders;
(C) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Agent, or any other rights or duties of Agent under this Agreement or the Other Documents, without the written consent of Agent, Borrowers and the Required Lenders;
(D) Anything in this Section 16.2(b) to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent, termination, or release of, or with respect to, any provision of this Agreement or any Other Document that relates only to the relationship of the Lenders among themselves, and that does not affect the rights or obligations of any Credit Party, shall not require consent by or the agreement of any Credit Party, and (ii) release all any amendment, waiver, modification, elimination, or substantially all consent of or with respect to any provision of this Agreement or any Other Document may be entered into without the aggregate value of consent of, or over the Guaranteeobjection of, unless consented to in writing by each Purchaser;any Defaulting Lender; and
(vE) change The Fee Letter may only be amended with the rights consent of Agent and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; Borrowers (it being understood that no Lender's consent shall be required).
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve event that Agent or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires Borrowing Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent or each affected Purchaser may be effected Borrowing Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or to another Lender or to any other Person designated by Agent or Borrowing Agent in compliance with Sections 3.11 and 16.3 (the consent of the applicable Purchasers other than Defaulting Purchasers"Designated Lender"), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser for a price equal to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through the then outstanding principal amount thereof plus (iiiii) of Section 16.2accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event that (i) the Issuer has requested that the Purchasers consent Agent elects to a departure require any Lender to assign its interest to Agent or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained inDesignated Lender, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other will so notify such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser Lender in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 writing within ten (10) Business Days days following such Lender's denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement at any time an Out-of-Formula Loan exists or Borrowers make a request for an Advance that would result in an Out-of-Formula Loan, Agent may in its discretion and without the consent of any request therefor Lender, knowingly and intentionally, continue to make Revolving Advances (any such intentional Revolving Advance, an "Intentional Overadvance") to Borrowers for a period of 60 days (as such period may be extended by Required Lenders) unless such authorization is revoked by Required Lenders effective upon receipt by Agent of written notice of such revocation from Required Lenders; provided, that Agent may not make any Intentional Overadvance if, after giving effect to such Intentional Overadvance, the aggregate outstanding Intentional Overadvances would exceed ten percent (10%) of the Maximum Revolving Advance Amount (or such higher amount as Required Lenders may consent to) or would cause the Advances to exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make Intentional Overadvances, Lenders holding the Revolving Commitments shall be obligated to fund such Intentional Overadvances in accordance with their respective Revolving Commitment Percentages, and such Intentional Overadvances shall be payable on demand and shall bear interest at the rate applicable for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does make Intentional Overadvances, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder to make Intentional Overadvances shall not be limited by the Agentamount of the Out-of-Formula Loan. To the extent any Intentional Overadvances are not actually funded by the other Lenders as provided for in this Section 16.2(e), the Issuer or Agent may elect in its discretion to fund such Intentional Overadvances and any Purchaser, the Non-Consenting Purchaser such Intentional Overadvances so funded by Agent shall automatically be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, at any time in Agent's sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have executed not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, (iii) whether an Out-of-Formula Loan exists, or (iv) any other contrary provision of this Agreement, to make Revolving Advances (the "Protective Advances") to Borrowers on behalf of Lenders (unless such authorization is revoked by Required Lenders effective 10 days after receipt by Agent of prior written notice of such revocation from Required Lenders) which Agent, in its Permitted Discretion, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and delivered other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that the Protective Advances made hereunder shall not exceed ten percent (10%) of the Maximum Revolving Advance Amount (unless Required Lenders agree to a higher amount). Lenders holding the Revolving Commitments shall be obligated to fund such Assignment Protective Advances and Assumptioneffect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(g) Notwithstanding the foregoing Sections 16.2(e) and 16.2(f), at no time shall the aggregate total outstanding Intentional Overadvances and Protective Advances exceed ten percent (10%) of the Maximum Revolving Advance Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by Borrower or others, including specifically the Note PartiesFinancial Support Undertaking, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$1,000,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers Closing Date.
(viii) increase the Maximum Revolving Advance Amount.
(ix) Modify the definitions contained herein of the terms Eligible Inventory and Agent; Eligible Receivables. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of receipt of such request, such Lender shall be effected with deemed to have consented to matter that was the consent subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agentoption, require such Non-Consenting Purchaser Lender to sell, without recourse assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)"Designated Lender"), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find for a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount price equal to the applicable then outstanding principal of amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (PNC or to the extent Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such outstanding principal and accrued interest and fees) notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior theretoDesignated Lender, as a result of a waiver by such Non-Consenting Purchaser or otherwiseappropriate, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Warner Chilcott PLC)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage, or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) increase the Maximum Loan Amount (except in accordance with Section 2.24) without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to the provisions set forth below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days in any ninety (90) consecutive day period or adversely affect exceed the rights, duties, liabilities or indemnities lesser of (1) one hundred and five percent (105%) of the AgentFormula Amount and (2) the Maximum Loan Amount minus the Maximum Undrawn Amount of Letters of Credit minus the outstanding balance of Swing Loans without the consent of all Lenders;
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date, unless consented to increase the sublimits set forth in writing by the Required Purchasers and AgentFormula Amount or alter the definitions of Eligible Receivables, Eligible Insured Foreign Receivables, Eligible Un-Insured Foreign Receivables, Eligible Off-load Receivables, Eligible Stored Natural Gas Inventory, Eligible In-Transit Inventory, Eligible On-Track Inventory, Eligible Inventory or Eligible In-Tank Inventory in a manner that would increase the Formula Amount without the consent of Supermajority Lenders;
(x) release any Borrower or Guarantor (except as permitted herein) without the consent of all Lenders; or
(xi) amend or modify the pro rata treatment of Lenders as set forth in Section 2.20 hereof without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(d) If any action to be taken by Agent or Lenders hereunder requires unanimous consent and a Lender fails to give its consent, then provided that the Required Lenders have provided such consent, authorization or agreement, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. Notwithstanding anything In the event PNC elects to require any Lender to assign its interest to PNC or to the contrary hereinDesignated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no Defaulting Purchaser shall have later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of such Purchaserany Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (y5%) of the Formula Amount for up to thirty (30) consecutive Business Days in any waiver, amendment or modification requiring ninety (90) consecutive day period so long as the consent aggregate Revolving Advances (including Out-of-Formula Loans) do not exceed the lesser of all Purchasers or each affected Purchaser that by its terms materially (1) one hundred and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require five percent (105%) of the consent of such Defaulting Purchaser Formula Amount and (x2) the consent Maximum Loan Amount minus the Maximum Undrawn Amount of any Defaulting Purchaser Letters of Credit minus the outstanding balance of Swing Loans (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables”, “Eligible Insured Foreign Receivables”, “Eligible Un-Insured Foreign Receivables”, “Eligible Off-load Receivables”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible On-Track Inventory”, “Eligible In-Tank Inventory” or “Eligible Stored Natural Gas Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than five percent (5%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, at any time in the Agent’s sole discretion, regardless of (i) the Issuer has requested that the Purchasers consent to existence of a departure Default or waiver an Event of any provisions Default or termination of the Note Documents commitments of Lenders to make Revolving Advances hereunder for any reason, or agree to any amendment thereto, (ii) any other contrary provision of this Agreement, to make Revolving Advances to Borrowers on behalf of the consentLenders which Agent, waiver in its reasonable business judgment, deems necessary or amendment in question requires desirable (a) to preserve or protect the agreement Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement (the “Protective Advances”); provided, that the Protective Advances made hereunder shall not exceed five percent (5%) of the Maximum Loan Amount and provided further that at any time after giving effect to any such Protective Advances, the outstanding Revolving Advances, Swing Loans and Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed the Purchasers Maximum Loan Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (iiiincluding accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Required Purchasers have agreed to such consent, waiver or amendment, then Other Documents with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Green Plains Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (Lenders or the Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;Five Million Dollars ($5,000,000.00).
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the consentevent PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, waiver PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or amendment in question requires the agreement Designated Lender no later than five (5) days following receipt of all such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Purchasers Designated Lender, as appropriate, and Agent. Notwithstanding (iiia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Purchasers have agreed Lenders, voluntarily permit the outstanding Revolving Advances at any time to such consent, waiver or amendment, then with respect exceed the Formula Amount by up to any Purchaser that has not so consented ten percent (such Purchaser, a 10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “NonOut-Consenting Purchaserof-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the Issuer maydiscretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and consistent with its business judgment. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at its sole expense and effortany time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, upon notice to such Non-Consenting Purchaser and make Revolving Advances to Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit Loan and Security Agreement (Intelligroup Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if anyof, or relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by each of the Issuer’sparty or parties making such representations, Agent’s and each Purchaser’s respective officerswarranties or guarantees. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all the Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) increase the Maximum Loan Amount or the Maximum Revolving Advance Amount or permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding would exceed the Formula Amount for more than sixty (60) consecutive Business days or exceed 110% of the Formula Amount;
(iii) extend the final maturity of any Note or the due any scheduled date for any amount payment of principal, interest or fees payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser15.2(b);
(v) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $250,000; or
(vi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Danskin Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between each Note Partythe Credit Parties, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each Purchaserthe applicable Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer the Credit Parties signatory hereto may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note such Credit Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note such Credit Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentages or the maximum dollar commitment of any Purchaser unless consented to in writing by such PurchaserLender or the amount of any Delayed Draw Term Loan Amount;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 hereof (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser15.2(b);
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser$1,000,000;
(v) alter, amend or modify the provisions of Section 11.5 hereof;
(vi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(vii) release any Guarantor.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Credit Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Credit Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder .
(and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (xd) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that Agent or Borrowers request the consent of a Lender (iother than Lafayette Square or any of its Affiliates) the Issuer has requested that the Purchasers pursuant to this Section 15.2 and such consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentis denied, then with respect Agent or Borrowers may, at their respective option and upon five (5) Business Days prior written notice to any Purchaser that has not so consented Agent (if given by Borrowers) and such Purchaser, Lender (a “Non-Consenting PurchaserLender”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser Lender to sellassign its interest in the Advances to Lafayette Square, without recourse (or if Lafayette Square shall decline to purchase such interest, to another Lender or to any other Person eligible to become a Purchasing Lender in accordance with and subject the terms of Section 15.3(c), for a price equal to the restrictions contained in, then outstanding principal amount thereof plus accrued and consents required by, Section 16.3(c)), all of its interests, rights unpaid interest and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) fees due such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its NotesLender, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued which interest and fees) or fees shall be paid when collected from Borrowers. In the Issuer (to the extent amounts are due and owing to the event any Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be Lender is required to consummate any such sale or delegation ifassign its interests hereunder, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwiseLender will assign its interest, pursuant to a Transfer Supplement, on the circumstances entitling date specified in the Issuer notice given to require such sale and delegation cease to apply. If any Non-Consenting Purchaser Lender, which shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten be no later than fifteen (1015) Business Days after the date of such notice.
(e) Agent is hereby authorized by each Borrower and the Lenders, from time to time in Agent’s sole discretion, (i) after the occurrence and during the continuation of a Default or an Event of Default, or (ii) at any request therefor by time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make advances to Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (x) to preserve or protect the Issuer Collateral, or any Purchaserportion thereof, (y) to enhance the Non-Consenting Purchaser shall automatically be deemed likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (z) to have executed and delivered such Assignment and Assumptionpay any other amount chargeable to Borrowers pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Party's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Loan Parties may, subject to the provisions of this Section 16.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Loan Parties to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00).
(v) change the rights and duties of Agent.
(vi) permit any Advance to be made or issued if after giving effect thereto the Agent, total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred ten percent (110%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or each affected Purchaser to another Lender or to any other Person designated by Agent (the "Designated Lender"), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount hereof at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the "Out-of-Formula Loans"); provided, except that (x) that, such outstanding Advances do not exceed the Commitment of any Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Defaulting Purchaser may not be increased or extended without the consent of Out-of-Formula Loans, such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including Collateral previously deemed to be "Eligible Inventory", or "Eligible Receivable", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the Issuer may, at its sole expense circumstances and effort, upon notice not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to such Non-Consenting Purchaser be involuntary overadvances and the Agent, require such Non-Consenting Purchaser to sell, without recourse (shall be decreased in accordance with the preceding sentence. In addition to (and subject not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Agent is hereby authorized by Loan Parties and Lenders, from time to time in Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrower on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect that at any time after giving effect to any such Revolving Advances the Notes or Commitments that is the subject outstanding Revolving Advances do not exceed one hundred percent (100%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Horsehead Holding Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing writing, signed by the party to be charged. Notwithstanding the foregoing, Agent may modify this Agreement for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that the Agent shall send a copy of any such modification to the Borrowers and in accordance with this Agreementeach Lender (which copy may be provided by electronic mail). Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the maximum dollar commitment Revolving Commitment Percentage, the Maximum Revolving Advance Amount or the Term Loan Commitment Percentage, as applicable, of any Purchaser unless consented to Lender without the consent of such Lender directly affected thereby (it being understood and agreed that a waiver of any condition precedent set forth in writing by such PurchaserSection 8.01 or of any Default or Event of Default is not considered an extension or increase in the Revolving Commitment Percentage, Maximum Revolving Advance Amount or the Term Loan Commitment Percentage) of any Lender;
(ii) whether or not any Advances are outstanding, extend the maturity Term Loan Maturity Date, extend the Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) except in connection with any increase pursuant to Section 2.24 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to clause (e) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount without the consent of all Lenders;
(ix) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and AgentClosing Date without the consent of all Lenders; or
(x) release any Guarantor or Borrower (other than in accordance with the provisions of this Agreement) without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Guarantors, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or each affected Purchaser may to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest (including any accrued PIK Interest) and fees due such Lender, which interest and fees shall be effected with paid when collected from Borrowers. In the consent event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable Purchasers conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other than Defaulting Purchasers)contrary provision of this Agreement, except that (x) the Commitment of any such Defaulting Purchaser Agent may not be increased or extended at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to Formula Amount at such Purchasertime by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, (y) any waiver, amendment or modification requiring Lenders holding the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Revolving Commitments shall be required obligated to fund such Out-of-Formula Loans in respect accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Revolving Lenders under this Agreement and the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Other Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Universal Logistics Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerBorrower’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect wouldshall:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any Purchaser unless consented to in writing by Lender without the consent of such PurchaserLender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of principal or interest of any Note or Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable hereunder to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under any other Note Document, in each case, Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless consented to in writing imposed by each Purchaser directly and adversely affected therebyAgent));
(iii) except in connection with any increase pursuant to Section 2.25 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release without the consent of all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLenders;
(v) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the Agentconsent of all Lenders;
(viii) subject to clauses (e) and (f) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount without the consent of all Lenders; or
(ix) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to .
(d) In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such L▇▇▇▇▇ fails to respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to assign its interest in the Advances to Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the Issuer has requested that then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the Purchasers consent event Agent elects to require any Lender to assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such L▇▇▇▇▇’s denial, and such Lender will assign its interest to Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a departure Commitment Transfer Supplement executed by such Lender, Agent or waiver the Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of any provisions a Default or an Event of the Note Documents or agree to any amendment theretoDefault, (ii) that any of the consentother applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, waiver or amendment in question requires the agreement of all the Purchasers and (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the Required Purchasers consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have agreed changed the limits of Section 2.1(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be any of “Eligible Receivables,” “Eligible Inventory,” “Eligible Vendor Receivables,” “Eligible Cardlock Receivables,” “Eligible Credit Card Receivables,” “Eligible Dealer Receivables,” or “Eligible Fuel Inventory,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers decrease such consentexcess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), waiver or amendmentAgent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, then and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by B▇▇▇▇▇▇▇▇ and the Lenders, at any Purchaser that has time in the Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not so consented been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (such Purchaseriii) any other contrary provision of this Agreement, a to make Revolving Advances to Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement (the “Non-Consenting PurchaserProtective Advances”); provided, that the Protective Advances made hereunder shall not exceed one hundred ten percent (110%) of the Formula Amount in the aggregate and provided further that at any time after giving effect to any such Protective Advances, the Issuer may, at its sole expense outstanding Revolving Advances and effort, Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed the Maximum Revolving Advance Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and subject owing to the restrictions contained inAgent, and consents required by, Section 16.3(c)), Agent shall be entitled to all rights (including accrual of its interests, rights interest) and obligations remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionRevolving Advances.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (ARKO Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sLoan Party's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) increase the Maximum Loan Amount, the Maximum Revolving Advance Amount, the Maximum Capital Expenditure Amount or the Maximum Term Loan Amount;
(iii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any scheduled principal payment or fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser17.2(b);
(v) release any Collateral during any calendar year (other than in accordance with the provisions of this Agreement) having an aggregate value in excess of $5,000,000;
(vi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and ten percent (110%) of the Agent, unless consented to Formula Amount;
(viii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date (including any increase provided under Section 2.1(c)). Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Loan and Security Agreement (Stanadyne Automotive Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Maximum Revolving Advance Amount or the Commitment Percentage or maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction the provisions of this Agreement) having an aggregate value in excess of $1,000,000, or, except in mergers, consolidations, sales and other dispositions of any Borrower permitted under Section 7.17.1 hereof, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser;such Borrower from its Obligations hereunder.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred and five percent (105%) of the Agent, unless consented to in writing by Formula Amount.
(vii) increase the Required Purchasers and Agent; Inventory Advance Rate or the Cash on Deposit Advance Rate. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be effected with deemed not to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 16.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest, fees and other amounts due such Lender hereunder, which interest, fees and other amounts shall be paid when collected from Borrowers. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be "Eligible Inventory" becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Agent's sole expense discretion, (A) after the occurrence and effortduring the continuation of a Default or an Event of Default, upon notice or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to such Non-Consenting Purchaser and make Revolving Advances to the Borrowers on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (iii) to pay any other amount chargeable to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect Borrowers pursuant to the Notes or Commitments terms of this Agreement; provided, that is at any time after giving effect to any such Revolving Advances the subject outstanding Revolving Advances do not exceed one hundred and five percent (105%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount".
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Lesco Inc/Oh)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the maximum dollar commitment Commitment Percentage of any Purchaser unless consented to in writing by such PurchaserLender;
(ii) increase the Maximum Revolving Advance Amount;
(iii) extend the maturity of any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrowers to in writing by each Purchaser directly and adversely affected therebyLenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each Purchaser);
(v) release any Collateral during any calendar year having an aggregate value in excess of $250,000; or
(vi) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; . Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrowers, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrowers, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its sole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Non-Consenting Purchaser to sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and Assumption.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (PDS Financial Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note PartyBorrower, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Issuer’sBorrower's, Agent’s 's and each Purchaser’s Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreementwriting, signed by the party to be charged. Each Note Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrower may, subject to the provisions of this Section 16.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if shall, without the effect wouldconsent of all Lenders:
(i) increase the Commitment Percentage, the maximum dollar commitment of any Purchaser unless consented to in writing by such Purchaser;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented by Borrower to in writing by each Purchaser directly and adversely affected thereby;Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each Purchaser;15.2(b).
(iv) in each case, release any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, (ithe provisions of this Agreement) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (ii) release all or substantially all of the having an aggregate value in excess of the Guarantee, unless consented to in writing by each Purchaser;$250,000.
(v) change the rights and duties of Agent.
(vi) permit any Revolving Advance to be made if after giving effect thereto the Agent, total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (30) consecutive Business Days or adversely affect the rights, duties, liabilities or indemnities exceed one hundred five percent (105%) of the Agent, unless consented to Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in writing by effect on the Required Purchasers and Agent; Closing Date.
(viii) release any Guarantor. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note PartiesBorrower, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note PartiesBorrower, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 15.2 and such Lender shall not respond or each affected Purchaser may reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be effected with deemed to have consented to the consent matter that was the subject of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2request. In the event that (i) Agent requests the Issuer has requested that the Purchasers consent of a Lender pursuant to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers this Section 15.2 and (iii) the Required Purchasers have agreed to such consent, waiver or amendmentconsent is denied, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
(a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). If Agent is willing in its sole expense and effortabsolute discretion to make such Out-of-Formula Loans, upon notice such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section
(a) For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such Non-Consenting Purchaser excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by Borrower and the Lenders, from time to time in the Agent's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrower on behalf of the Lenders which the Agent, require such Non-Consenting Purchaser in its reasonable business judgment, deems necessary or desirable (a) to sellpreserve or protect the Collateral, without recourse or any portion thereof, (in accordance with b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and subject other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the restrictions contained interms of this Agreement; provided, and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect that at any time after giving effect to any such Revolving Advances the Notes or Commitments that is the subject outstanding Revolving Advances do not exceed one hundred ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Small World Kids Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between each Note Loan Party, Agent and each Purchaser Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the IssuerLoan Party’s, Agent’s and each PurchaserLender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing and in accordance with this Agreement. Each Note Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the other Note Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Purchasers (or the Lenders, Agent with the consent in writing of the Required Purchasers) Lenders, and Issuer Borrowers may, subject to the provisions of this Section 16.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the other Note Other Documents executed by the Note PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the PurchasersLenders, Agent or the Note Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall be effective if the effect would:: ChangePro Comparison of ABL and PNC - Exhibit A to Third Amendment 10/3/2016
(i) except in connection with any increase pursuant to Section 2.24 hereof, increase the Commitment Percentage, the maximum dollar commitment of any Purchaser Lender or the Maximum Revolving Advance Amount unless consented to in writing by such Purchasereach Lender;
(ii) extend the maturity of any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrowers to Lenders hereunder or under any other Note Documentpursuant to this Agreement, in each case, unless consented to in writing by each Purchaser directly and adversely affected therebyLender;
(iii) alter the definition of the term Required Purchasers Lenders or alter, amend or modify this Section 16.2(b) unless consented to in writing by each PurchaserLender;
(iv) in each case, release (i) any Collateral during any calendar year (other than in connection accordance with a transaction permitted under Section 7.1, the provisions of this Agreement) having an aggregate value in excess of $1,000,000 or (iii) release all or substantially all any Guarantor (other than in accordance with the provisions of the Collateral in any transaction or series of related transactions, this Agreement) unless consented to in writing by each Purchaser or (ii) release all or substantially all of the aggregate value of the Guarantee, unless consented to in writing by each PurchaserLender;
(v) change the rights and duties of the Agent, or adversely affect the rights, duties, liabilities or indemnities of the Agent, Agent unless consented to in writing by the Required Purchasers Lenders and Agent;
(vi) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount unless consented to in writing by each Lender; or
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date unless consented to in writing by each Lender. Any such supplemental agreement shall apply equally to each Purchaser Lender and shall be binding upon the Note Loan Parties, the Purchasers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Note Loan Parties, Agent and Purchasers Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. Notwithstanding anything to In the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires event that Agent requests the consent of all Purchasers a Lender pursuant to this Section 16.2 and such consent is denied or each affected Purchaser such Lender does not respond or reply to Agent within five (5) Business Days of delivery of such request, then PNC shall, at its option or at the request of the Borrowing Agent, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event PNC requires any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent. ChangePro Comparison of ABL and PNC - Exhibit A to Third Amendment 10/3/2016 Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may be effected with at its discretion and without the consent of the applicable Purchasers other than Defaulting PurchasersRequired Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent determines in its sole and absolute discretion to permit such Out-of-Formula Loans, except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser Out-of-Formula Loans shall be required in respect payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of any amendments referred Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to in clauses (i) through (iii) have changed the limits of Section 16.22.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event that Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i) the Issuer has requested that the Purchasers consent to a departure or waiver of any provisions of the Note Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent, waiver or amendment, then with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”10%), Agent shall use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the Issuer may, at its sole expense circumstances and effort, upon notice not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to such Non-Consenting Purchaser be involuntary overadvances and the Agent, require such Non-Consenting Purchaser to sell, without recourse (shall be decreased in accordance with the preceding sentence. In addition to (and subject not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, from time to time in Agent’s sole discretion, (A) after the occurrence and during the continuance of an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to Borrowers pursuant to the restrictions contained interms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not exceed one hundred and consents required by, Section 16.3(c)), all of its interests, rights and obligations with respect to the Notes or Commitments that is the subject ten percent (110%) of the related consent, waiver and amendment and the related Note Documents to one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Issuer (to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to Section 16.3 within ten (10) Business Days of any request therefor by the Agent, the Issuer or any Purchaser, the Non-Consenting Purchaser shall automatically be deemed to have executed and delivered such Assignment and AssumptionFormula Amount.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Keane Group, Inc.)