No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered). (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a). (c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms. (d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 5 contracts
Sources: Credit Agreement (Huntsman CORP), Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any the Letter of Credit beyond the Revolver Pre-Funded L/C Commitment Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Subsidiary Guaranty or the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders Lenders; or
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Term Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Lender,
(it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2B) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4C) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7D) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a4.4(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(E) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders,
(F) without the consent of the Majority Lenders of the Term Facility affected thereby, amend the definition of Term Pro Rata Share,
(G) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment;
(H) without the consent of the Majority Lenders holding Pre-Funded L/C Commitments, amend, modify or waive any condition precedent set forth in Section 2.1(b)(ii) with respect to the amendment of the Letter of Credit;
(I) without the consent of Issuing Bank, amend, modify or waive any provision of Section 2.1(b) or alter its rights and obligations with respect to the Letter of Credit;
(J) without the consent of Deposit Bank, amend, modify or waive any provision relating to the rights or obligations of Deposit Bank; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and Administrative Agent if (a) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (D) through (H) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Company if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans and L/C Participations of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 4 contracts
Sources: Term Loan Agreement (Texas Petrochemicals Inc.), Term Loan Agreement (Texas Petrochemicals Inc.), Term Loan Agreement (Texas Petrochemicals Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Majority Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) increase the percentages in clause (a)(i) or (a)(ii) of the definition of the term Borrowing Base to a percentage greater than that in effect on the Closing Date,
(ii) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateNote, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, ,
(iiiii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor ),
(other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iiiiv) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Majority Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or ; or
(v) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Lender,
(it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2B) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4C) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the consent of respective Credit Parties thereto, the Majority Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and Administrative Agent if (a) by the terms of such agreement all Commitments of each FacilityLender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, amend the definition of Majority Lenders, (6) without the consent each Lender not consenting thereto receives payment in full of the Majority Lenders principal of the applicable Facility, amend the Scheduled Term Repayments and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)its account under this Agreement.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Company if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 4.13 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Investment Advisor in any case shall entitle the Borrower or the Investment Advisor to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Investment Advisor, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, in connection with the increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (ivor providing a new Individual Lender Maximum Funding Amount) reduce shall be required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts.
(d) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.), Revolving Credit and Security Agreement (Goldman Sachs Private Credit Corp.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), that:
(i) extend any Fundamental Amendment shall also require the final scheduled maturity written consent of any Loan or Note all Lenders; and
(ii) no such amendment (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Dateany Benchmark Replacement Conforming Changes), modification, supplement or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1Agent, (iv) reduce the percentage specified in Document Custodian or the definition of Required Lenders (it being understood that, with Collateral Administrator hereunder without the prior written consent of the Required Lenders (such Agent, Document Custodian or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansCollateral Administrator, as the case may be, are included on the date hereof.
(c) or (v) consent Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Borrower consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations that would be directly affected thereby in the case of the following clause (i), thereby:
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Datesuch Lender, or reduce the rate or extend the time of payment of interest (or fees due to such Lender except for waivers of Default Rate interest) interest and except for amendments or fees thereonmodifications of defined terms used in any calculations in this Agreement, or reduce or forgive the principal amount thereofof any Loan of such Lender or extend the scheduled time of payment of any such principal, interest or fees due (excluding in each case mandatory prepayments) to such Lender or reduce the amount of any other amounts payable to such Lender hereunder or under any other Loan Document or extend the expiration date of any Commitment of such Lender,
(ii) release all or substantially all of the Collateral (except as expressly provided in Guarantors, or all or substantially all of the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material value of the Subsidiary or (y) in connection with a transaction permitted by Section 8.3), Guaranties,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.10 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the Borrower Company of any of its rights and obligations under this Agreement; Agreement (except as expressly provided herein),
(v) extend the Bridge Loan Maturity Date,
(vi) impose restrictions on the conversion of Rollover Loans into Exchange Notes or alter the rate of such exchange or amend, modify or waive the terms of the Exchange Notes in any manner that requires (or would, if the Exchange Notes were outstanding require) the approval of all holders of Exchange Notes, or
(vii) amend the Securities Demand provisions hereof, provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) [Reserved],
(C) without the consent of the applicable Facing Agent, Administrative Agent amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3x) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the rights or obligations of Administrative Agent or (y) any other provisions provision under this Agreement or any other Loan Document as same relates to the rights or obligations of the Administrative Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5E) without the consent of each Lender with Obligations directly affected thereby amend the Majority Lenders definition of Required Lenders,
(F) [Reserved], or
(G) without the consent of each FacilityLender with Obligations directly affected thereby, amend the definition of Majority LendersPro Rata Share, provided that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (6measured after giving effect to such amendment, supplement, waiver, discharge or termination) and any Administrative Agent if (x) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (y) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of the Majority Lenders such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the Lenders hereunder requiring any consent of the Majority Lenders) and no such amendment, waiver or consent may disproportionately adversely affect such Lender as compared with the other Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any without such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)disproportionately affected Lender’s consent.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Company if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In additionNotwithstanding anything to the contrary contained in Section 12.1, notwithstanding if Administrative Agent and Company shall have jointly identified an obvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the foregoingLoan Documents, this Agreement may then Administrative Agent and Company shall be amended with the written permitted to amend such provision and such amendment shall become effective without any further action or consent of Administrative Agent, Borrower and any other party to any Loan Document if the Lenders providing the relevant Replacement Term Loans (as defined below) same is not objected to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made writing by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders within five (treating the Refinanced Term Loans 5) Business Days following receipt of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsnotice thereof.
(d) Notwithstanding anything to the foregoingcontrary in this Agreement or in any other Loan Document, upon the execution Company and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended can enter into the Rollover Amendment without further action by the consent of any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term LoanLender.
Appears in 3 contracts
Sources: Bridge Loan Agreement (Ball Corp), Bridge Loan Agreement (Ball Corp), Bridge Loan Agreement (Ball Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(a) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(b) Notwithstanding anything to the contrary herein, in connection with the increase of the Commitments hereunder, only the consent of the Lender increasing its Commitment (ivor providing a new Commitment) reduce shall be required for any amendment that effects such increase in Commitments.
(c) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, in connection with the increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (ivor providing a new Individual Lender Maximum Funding Amount) reduce shall be required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts.
(d) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Barings Private Credit Corp), Revolving Credit and Security Agreement (Blackstone Private Credit Fund), Revolving Credit and Security Agreement (Barings Private Credit Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Collateral Manager in any case shall entitle the Borrower or the Collateral Manager to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required LendersMajority Lenders (with prior notice to the Collateral Agent); provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, in connection with the increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (ivor providing a new Individual Lender Maximum Funding Amount) reduce shall be required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts.
(d) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 3 contracts
Sources: Credit Agreement (HPS Corporate Lending Fund), Credit Agreement (HPS Corporate Lending Fund), Revolving Credit and Security Agreement (HPS Corporate Lending Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent hereunder without the prior written consent of each Lender such Agent.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund), Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations that would be directly affected thereby in the case of the following clause (i), thereby:
(i) extend the final scheduled maturity of any Loan or Note (includingof such Lender, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateDate (it being understood that only Multicurrency Revolving Lenders would be directly affected by such extension), or reduce the rate or extend the time of payment of interest (or fees due to such Lender except for waivers of Default Rate interest) interest and except for amendments or fees thereonmodifications of defined terms used in any financial ratio or other calculations in this Agreement that result in a decrease in the applicable interest rates and fees, or reduce or forgive the principal amount thereofof any Loan of such Lender or extend the scheduled time of payment of any such principal, interest or fees due (excluding in each case mandatory prepayments) to such Lender or reduce the amount of any other amounts payable to such Lender hereunder or under any other Loan Document or extend the expiration date of any Commitment of such Lender,
(ii) release all or substantially all of the Guarantors, all or substantially all of the value of the Guarantees or all or substantially all of the Collateral (except as expressly provided herein or in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.10 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders, or
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the Borrower Company of any of its rights and obligations under this Agreement; Agreement (except as expressly provided herein), provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, Agent or Collateral Agent amend, modify or waive (x) any provision of Article XI as same applies to the rights or obligations of Administrative Agent or Collateral Agent or (y) any other provisions provision under this Agreement or any other Loan Document as same relates to the rights or obligations of the Administrative Agent or Collateral Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5E) without the consent of each Lender with Obligations directly affected thereby amend the Majority Lenders definition of Required Lenders, or
(F) without the consent of each FacilityMulticurrency Revolving Lender with Obligations directly affected thereby, amend the definition of Majority LendersMulticurrency Revolver Pro Rata Share, provided that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (6measured after giving effect to such amendment, supplement, waiver, discharge or termination) and any Administrative Agent if (x) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (y) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of the Majority Lenders such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the Lenders hereunder requiring any consent of the Majority Lenders) and no such amendment, waiver or consent may disproportionately adversely affect such Lender as compared with the other Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any without such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)disproportionately affected Lender’s consent.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Company if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In additionNotwithstanding anything to the contrary contained in Section 12.1, notwithstanding if Administrative Agent and Company shall have jointly identified an obvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the foregoingLoan Documents, this Agreement may then Administrative Agent and Company shall be amended with the written permitted to amend such provision and such amendment shall become effective without any further action or consent of Administrative Agent, Borrower and any other party to any Loan Document if the Lenders providing the relevant Replacement Term Loans (as defined below) same is not objected to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made writing by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders within five (treating the Refinanced Term Loans 5) Business Days following receipt of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsnotice thereof.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 3 contracts
Sources: Credit Agreement (Ball Corp), Credit Agreement (Ball Corp), Credit Agreement (Ball Corp)
No Waiver; Modifications in Writing. (a) A. Except as expressly provided in this Agreement, no failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) B. If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) C. In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) D. Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Credit Agreement (Huntsman CORP), Credit Agreement (Huntsman CORP)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Investment Advisor in any case shall entitle the Borrower or the Investment Advisor to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Investment Advisor, the Administrative Agent and the Required Majority Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent or the Collateral Administrator hereunder without the prior written consent of each Lender such Agent or the Collateral Administrator.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Fidelity Private Credit Fund), Revolving Credit and Security Agreement (Fidelity Private Credit Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent Company or any Lender the Investor in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Company or any Lender the Investor at law or in equity or otherwise. Neither No waiver of or consent to any departure by the Company or the Investor from any provision of this Agreement nor any terms hereof may shall be amended, modified, supplemented, waived, discharged, terminated or otherwise changed effective unless such amendment, modification, supplement, waiver, discharge, termination or other change is signed in writing signed by the Borrower and party entitled to the Required Lenders; benefit thereof, provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity notice of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofsuch waiver shall be given to each party hereto as set forth below, (ii) release all Section 5.9 may not be waived or substantially all of amended by any party hereto and (iii) Section 5.10 may not be waived or amended by any party hereto unless such section applies to the Collateral (except Investor by its terms. Except as expressly provided in the Security Documents) immediately preceding sentence, no provision of this Agreement may be amended except in a written instrument signed by the Company and the Investor. Any amendment, supplement or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary modification of or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce any waiver of any provision of this Agreement, and any consent to any departure by the percentage specified Company or the Investor from the terms of any provision of this Agreement shall be effective only in the definition specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of Required Lenders (it being understood thatany provision of any of the Transaction Documents or Other Agreements unless the same consideration also is offered to all of the parties to the Transaction Documents and the Other Agreements, the holders of Common Stock issued in connection with the consent Offering or holders of any Warrants issued in connection with the Required Lenders Offering (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be). No Seller has, are included on the date hereof) directly or (v) consent to the assignment or transfer by the Borrower of indirectly, made any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of agreements with any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions Other Investor relating to the rights terms or obligations conditions of the Administrative Agent under transactions contemplated by the Other Agreements and the Transaction Documents except as set forth in the Other Agreements and the Transaction Documents, and no Other Investor has been given terms or conditions that are more favorable than the terms and conditions set forth in this Agreement and the other Loan Transaction Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, . If any Other Agreement is amended or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment modified by any Seller or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtainedOther Investor, then the Borrower shall Investor may, in its sole discretion, choose to have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) such amendment or (B) below, modification apply to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise this Agreement by delivering written notice to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplementCompany. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement may be amended with Agreement, the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) Investor has not made any commitment or promise or has any other obligation to permit the refinancing or modification of all outstanding Term Loans of provide any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent financing to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it Company or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsotherwise.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Subscription Agreement (Eaturna LLC), Subscription Agreement (Eaturna LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of Default Rate interest) or fees thereonInterest), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders Lenders, “Required Domestic Lenders”, “Required European Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Intercreditor Agreements, with the consent Sharing Agreement and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case of an amendment pursuant to Section 2.1(a)(ii))each case, the definition of “Required Lenders” shall include lenders for technical amendments with respect to additional revolving loans or term loans extensions of credit pursuant to this Agreement so long as Section 2.9 which afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or , or
(viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Euro Revolving Sublimit, Schedule 1.1(b) conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.,
Appears in 2 contracts
Sources: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Seller, the Administrative Agent and the Required Majority Lenders; provided that no such any amendment, modification, supplement, waiver, discharge, termination waiver or other change shall, without supplement of or to this Agreement that would (i) increase or extend the consent term of each Lender the Commitments (other than a Defaulting Lender) with Obligations directly affected thereby an increase in the case Commitment of a particular Lender or addition of a new Lender hereunder agreed to by the following clause (i), (irelevant Lender(s) extend pursuant to the final scheduled maturity terms of any Loan this Agreement) or Note (including, without limitation, by amending or modifying change the proviso contained in the definition of Revolver Termination Date or Term B Loan Final Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all extend the date fixed for the payment of principal of or substantially all of the Collateral (except as expressly provided in the Security Documents) interest on any Advance or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)fee hereunder, (iii) amend, modify or waive reduce the amount of any provision such payment of this Section 12.1principal, (iv) reduce the percentage specified in rate at which interest (other than Interest paid at the definition of Required Lenders Post-Default Rate) is payable thereon or any fee is payable hereunder, (it being understood that, with the consent v) release any material portion of the Required Lenders Collateral, except in connection with dispositions permitted hereunder, (vi) alter the terms of Section 9.01 or Section 11.01(b), or (vii) modify in any other manner the number or percentage of the Lenders providing Additional Term Loans in the case of an amendment pursuant required to Section 2.1(a)(ii)), make any determinations or waive any rights hereunder or to modify any provision hereof (including the definition of “Required Majority Lenders” ”) shall include lenders with respect require the written consent of all Lenders.
(c) Notwithstanding anything to additional revolving loans or term loans pursuant to the contrary contained in this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans any other Facility Document, no Defaulting Lender shall have any right to vote, approve or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower disapprove of any of its rights and obligations amendment, waiver or consent under this Agreement; provided, further, that no such Agreement or any other Facility Document (and any amendment, modification, supplement, waiver, discharge, termination waiver or other change shall (1) increase consent which by its terms requires the Commitments consent of all Lenders or each affected Lender may be effected without the consent of any Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender over the amount thereof then in effect may not be increased or extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Defaulting Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding The Borrower shall deliver to the foregoingServicer and the Backup Servicer copies of any amendment, upon the modification, supplement or waiver of this Agreement promptly following execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loaneffectiveness thereof.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Compass, Inc.), Revolving Credit and Security Agreement (Compass, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, in connection with the increase of the Commitments hereunder, only the consent of the Lender increasing its Commitment (ivor providing a new Commitment) reduce shall be required for any amendment that effects such increase in Commitments.
(d) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may provision of this Agreement, and any consent to any departure by any party to this Agreement from the terms of any provision of this Agreement, shall be available effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.11(b) with respect to the Administrative Agent implementation of a Benchmark Replacement Rate or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amendedBenchmark Replacement Conforming Changes (as set forth therein), modified, supplemented, waived, discharged, terminated or otherwise changed unless such no amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders, provided that:
(i) any Fundamental Amendment shall require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1Agent, the Swingline Lender, the Custodian, the Collateral Administrator or the Backup Collateral Manager (ivincluding in its role as successor Collateral Manager if it shall be so appointed) reduce hereunder without the percentage specified in the definition of Required Lenders (it being understood that, with the prior written consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))such Agent, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans Swingline Lender, Custodian, Collateral Administrator or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansBackup Collateral Manager, as the case may be, are included on the date hereof) or (v) consent . Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer by the Borrower of disapprove any of its rights and obligations under this Agreement; provided, further, that no such amendment, modificationwaiver or consent hereunder, supplementexcept that the Commitment of such Lender may not be increased or extended, waiverand amounts payable to such Lender hereunder may not be permanently reduced, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall other than reductions in fees and interest in which such reduction does not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of disproportionately affect such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Allocated Facility Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 2 contracts
Sources: First Omnibus Amendment (Pennantpark Investment Corp), Revolving Credit and Security Agreement (Pennantpark Investment Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Loan Parties party thereto and the Required Requisite Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than than, subject to clause (h) below, a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the Commitment Period or the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except payment of interest at the Default Rate, and it being understood that the waiver of any mandatory prepayment shall not constitute a postponement of any date scheduled for waivers the payment of Default Rate interest) principal, interest or fees thereonfees), or reduce or forgive the principal amount thereof, ,
(ii) release Company as a Guarantor or release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Collateral Documents or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by pursuant to Section 8.311.10(d), ),
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders “Requisite Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Collateral Documents, with which are governed by Section 12.17), specifying the consent number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case each case, for technical amendments with respect to additional extensions of an amendment credit pursuant to Section 2.1(a)(ii2.1, 2.10 and 2.15 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the Closing Date)), ,
(iv) amend or modify the definition of “Required LendersPro Rata Share” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans any component thereof,
(v) change Section 12.8(e) in a manner that further restricts assignments thereunder; or
(vi) amend or term loans are on substantially modify the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofprovisions of Sections 4.5(a) or (vb), 10.6, 12.6(a) consent to or 14.3 in a manner that would by its terms alter the assignment or transfer by the Borrower pro rata sharing of any of its rights and obligations under this Agreementpayments required thereby; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Multicurrency Revolving Sublimit, conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Facing AgentAdministrative Agent and each Issuing Lender, amend, modify or waive any provision of Section 2.9 2.11 or alter such Facing Agent’s the rights or obligations of any Issuing Lender with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or Collateral Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent or Collateral Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent or Collateral Agent under the other Loan Documents,
(E) amend, modify, terminate or waive any provision of Section 2.1(d) or any other provision of this Agreement directly affecting the Domestic Overdraft Account or the Domestic Overdraft Amount (5including any provision relating to the repayment of the Domestic Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in the Domestic Overdraft Amount) without the consent of Administrative Agent,
(F) amend, modify, terminate or waive any provision of this Agreement directly affecting an Offshore Overdraft Account or an Offshore Overdraft Amount (including any provision relating to the repayment of such Offshore Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in such Offshore Overdraft Amount) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, applicable Offshore Overdraft Provider,
(6G) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Requisite Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (except for technical amendments with respect to additional facilities, replacements loans or commitments, or maturity extensions pursuant to Sections 2.1, 2.10 and 2.15) (although the Required Requisite Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered), or
(H) without the consent of the Requisite Lenders of the applicable Facility, waive any Scheduled Term Repayment under such Facility or amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment (except for technical amendments with respect to additional facilities, replacements loans or commitments, or maturity extensions pursuant to Sections 2.1, 2.10 and 2.15).
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (G) through (H) of the second proviso to such sentence, the consent of the Required Requisite Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedule 1.1(c) may be amended as follows:
(i) to add Wholly-Owned Subsidiaries of Company as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution by Company, any such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be, and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for an Additional Domestic Subsidiary Borrower Sublimit or Additional Foreign Subsidiary Borrower Sublimit, as the case may be, acceptable to Administrative Agent, (B) terminate delivery to Administrative Agent of (1) to the extent not previously delivered, the pledge and security agreements required pursuant to Section 7.9(c), (2) an opinion of counsel which covers such non-consenting Lender’s Revolving Commitment matters related to such agreements as Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to Administrative Agent, and repay (3) such other documents with respect thereto as Administrative Agent or any Lender shall reasonably request (including, without limitation, USA Patriot Act and “know your customer” related documentation); or
(ii) to remove any Subsidiary as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution and delivery by Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to (x) Section 2.10 in connection with an Additional Facility, (y) Section 2.1(c) in connection with any Refinancing Term Loans and (z) Section 2.15 in connection with any Extension Series, this Agreement shall be deemed amended without further action by any Lender which gave rise to reflect, as applicable, any new Lenders and technical and conforming amendments to reflect the need to obtain terms of such Lender’s consentAdditional Facility, in accordance with Section 4.1(bRefinancing Term Loan or Extension Series (as applicable) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any Additional Facility) any documentation to evidence any Additional Incremental Rights.
(e) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Loan Parties party hereto, the Requisite Lenders and Administrative Agent (and, if their rights or obligations are affected thereby, each other Agent and each Issuing Lender) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(f) A Revolving Lender may allocate any proportion of its Revolving Credit Commitment or Revolving Credit Exposure with respect to any waiver, amendment, modification, consent or any other action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect this Section 12.1 or any other Loan Document in order to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)vote separate portions thereof differently with respect thereto.
(cg) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Company, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Loan Facilities (“Refinanced Term Loans”) with one or more a replacement or modified term loan tranche hereunder which shall constitute Term Facilities Loans hereunder under a new Term Loan Facility (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (db) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the such Refinanced Term Loans at the time of such amendment refinancing and the final maturity date of such Replacement Term Loans shall be no earlier than the final maturity date of such Refinanced Term Loan and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of refinancing. In addition, any Lender that does not provide providing Replacement Term Loans as having been paid shall become bound by the Re-Allocation Agreement in full immediately prior a manner satisfactory to Administrative Agent, and the Lenders and Issuing Lenders hereby authorize Administrative Agent and Collateral Agent to enter into any amendments or supplements to the amendment) shall approve such termsRe-Allocation Agreement as Administrative Agent deem necessary or appropriate in order to give effect to the foregoing.
(dh) Notwithstanding the foregoing, upon with respect to amendments under Section 12.1(a) requiring the execution and delivery approval of all documentation required by of the Lenders under the Revolving Facility adversely affected thereby, if all such Lenders other than one or more Defaulting Lenders approve such amendment, the failure of such Defaulting Lenders to approve such amendment shall not prevent such amendment from becoming effective with respect to such Lenders approving such amendment (it being understood that such amendment will not be effective with respect to such Defaulting Lenders that do not approve such amendment).
(i) In addition, notwithstanding the foregoing, this Agreement or any other Loan Document may be amended with the written consent of Administrative Agent, Company and the Borrowers to make any changes to this Agreement or any other Loan Document deemed in the best interest of the Lenders, in consultation with counsel, in connection with the joinder or addition of any Borrower or Guarantor that was not a Loan Party on the Closing Date, including in connection with the creation or perfection of a security interest in any Collateral located in a jurisdiction under which Collateral was not secured or perfected in connection with the Closing Date under the Offshore Collateral Documents, upon delivery to Administrative Agent of (1) to be delivered the extent not previously delivered, the pledge and security agreements required pursuant to Section 2.1(a)(ii7.9(c), (2) an opinion of counsel which covers such matters related to such agreements as Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to Administrative Agent, and (3) such other documents with respect thereto as Administrative Agent shall reasonably request.
(j) Notwithstanding anything to the contrary contained in connection with this Section 12.1, if Administrative Agent and Company shall have jointly identified an Additional Term Loanobvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then Administrative Agent and Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document.
(k) Notwithstanding anything to the contrary contained in this Section 12.1, the Re-Allocation Agreement shall not be deemed amended, restated, amended and restated, supplemented and/or otherwise modified in any manner that would be materially adverse to the Loan Parties without further action by any Lender to reflect, as applicable, the new Lenders and prior written consent of the terms of such Additional Term LoanBorrowers’ Agent.
Appears in 2 contracts
Sources: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens-Illinois Group Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is waiver of or to any provision of this Agreement, nor consent to any departure by any Borrower or any of its Subsidiaries therefrom, shall be effective unless the same shall be in writing and signed by or on behalf of the Borrower Required Lenders and the Required LendersBorrowers; provided provided, however, that no such amendment, modification, supplement, waivertermination, discharge, termination waiver or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loansconsent, as the case may be, are included shall (A) reduce the rate of interest or extend the final maturity of the Revolving Commitments (but excluding any change relating to waiver of the applicability of the Default Rate or any mandatory or voluntary repayment of any principal sum payable by any Borrower to any Lender hereunder or any mandatory commitment reduction of the Revolving Commitment related to any mandatory prepayment other than the mandatory commitment reduction at the end of the Commitment Period), or the date for payment of any fees or interest on any Loan, or Letter of Credit or any date for reimbursement of any Letter of Credit Payment or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Loan or Letter of Credit Payment, or amend the definition of “Borrowing Base” to increase the advance rate percentages specified therein to a level higher than that existing on the date hereof, without the prior written consent of each holder of a Note or Lender affected thereby, (B) without the prior written consent of the affected Lender, increase the Commitment of any Lender, extend any Commitment, decrease the principal amount of any Loan or fees owed to any Lender hereunder or change the Revolving Pro Rata Share of any Lender, or, without the prior written consent of all Lenders, increase the amount of the Commitments, (C) change this Section 13.1 or the definitions of the terms “Required Lenders” or “Revolving Pro Rata Share,” without the prior written consent of each Lender affected thereby, or (D) other than as expressly permitted in Section 13.16, effect any release of any material portion of the Collateral during the term of this Agreement or release of any Borrower or Subsidiary Guarantor (other than a Subsidiary Guarantor which is not a Material Subsidiary) from all or substantially all its obligations under the Subsidiary Guarantee Agreement or amend any of the Loan Documents to change the first lien nature of the Collateral without the prior written consent of all Lenders hereunder (other than as a result of a transaction permitted by Section 8.3 or an Asset Disposition made in accordance with the terms of this Agreement (including any amendments thereto permitted hereby) or (v) consent as otherwise permitted pursuant to the assignment or transfer by the Borrower of any of its rights Subsidiary Guarantee Agreement); and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination or other change shall as the case may be, which has the effect of (1x) increase increasing the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights duties or obligations of the Administrative AgentAgent hereunder, (4y) without increasing the consent standard of care or performance required on the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations part of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facilityhereunder, or (7z) reducing or eliminating the fees, indemnities or immunities to which Administrative Agent is entitled hereunder (including, without the consent limitation, any amendment or modification of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionthis Section 13.1(a)), as between shall be effective unless the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole same shall be signed by or in parton behalf of Administrative Agent; and provided further, any that no such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided thatas the case may be, affecting the rights or duties of any Facing Bank under this Agreement or any other Loan Document, shall be effective unless the Revolving Commitment terminated and Loans repaid pursuant same shall be signed by such Facing Bank. Any amendment, modification or supplement of or to the preceding clause (B) are immediately replaced in full at such time through the addition any provision of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto)this Agreement, then in the case any waiver of any action pursuant provision of this Agreement, and any consent to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated departure by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Borrowers from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by any Loan Document, no notice to or demand on a Borrower in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Revolving Credit Agreement (Huntsman Petrochemical Finance Co)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement or the Fee Letter shall be effective unless (i) it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ), (ii) if it diminishes the rights or increases the obligations of the Collateral Manager, it is consented to by the Collateral Manager, (iii) if it diminishes the rights or increases the obligations of the Transferor with respect to any Facility Documents, it is consented to by the Transferor and (iv) a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section
12.01 (b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) hereof or (vH) consent to extend the assignment or transfer by the Borrower of Reinvestment Period; and
(ii) any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver of Article VIII, waiverArticle XI, discharge, termination or other change shall (1) increase the Commitments of any Lender over of the amount thereof then other rights or duties of either Agent (including the Collateral Agent in effect its role as Custodian) hereunder, shall require the consent of such Agent.
(c) Notwithstanding anything to the contrary set forth herein, no amendment or waiver under this Agreement or any other Facility Document that would affect a CP Conduit, a support provider of a CP Conduit or an Advance made by such CP Conduit in a manner that is disproportionate and adverse relative to other Lenders shall be effective without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)CP Conduit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (WhiteHorse Finance, LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), .
(i) extend reducing the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)aggregate principal amount of, or extend the stated maturity of interest rate on, any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) Revolving Notes or release releasing any Subsidiary Guarantor (other than (x) as a Guarantor that is not a Material Subsidiary or (y) in connection with result of a transaction permitted by Section 8.38.4 or an Asset Disposition made in accordance with the terms of this Agreement) or the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final maturity of any of the Revolving Commitments or the Revolving Notes or the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments or the Revolving Notes (other than by way of (a) Modification of any provision for, or having the effect of requiring, any mandatory prepayment of any portion of any Loan, or (b) Modification or waiver of any Event of Default (other than an Event of Default described in Section 9.1(a)(i), 9.1(g) or 9.1(h)) or Unmatured Event of Default); or
(iii) amendchanging this proviso or the first sentence of Section 11.9(a), modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders the term "Majority Lenders", or (except in connection with a permitted assignment by any Lender under this Agreement) the definition of the terms "Revolving Commitment" or "Commitment Percentage" (it being understood with respect to all of the foregoing that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Majority Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such additional revolving loans or term loans are may be included in the determination of the Majority Lenders on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement); provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Agent shall be required to effect any Modification that has the effect of (it being understood that waivers x) increasing the duties or modifications obligations of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender)Agent, (2y) without increasing the consent standard of care or performance required on the applicable Facing part of Agent, amendor (z) reducing or eliminating the indemnities, modify exculpations or waive immunities to which Agent is entitled. Any Modification of or to any provision of Section 2.9 this Agreement shall be effective only in the specific instance and for the specific purpose for which made or alter such Facing Agent’s rights given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent demand on Borrower or any other provisions as same relates Person in any case shall entitle Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viii), inclusive, of the first proviso to the third sentence of Section 12.1(a(a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.4(b) and 4.3and/or 4.2(c); provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), ) the specific consent of the Required Majority Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second first proviso to the third sentence of this Section 12.1(a11.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ):
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (or fees thereon except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document,
(ii) release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Collateral Documents or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3this Agreement), ,
(iii) amend, modify or waive any provision of this Section 12.1, 10.01 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 or 2.15 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders, or
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; and provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default Defaults or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ;
(2B) without the consent of the applicable Facing AgentBank of America and each other L/C Issuer that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.03 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit;
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI IX as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ;
(5E) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionreductions), as between among the various Facilities, without the consent of the Required Term Lenders, the Required U.S. Revolving Lenders and the Required Global Lenders, as applicable and to the extent that their respective Facilities pursuant to Section 4.5(a) (although are being allocated a lesser prepayment, repayment or commitment reduction; provided that the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst among the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).; or
(bF) If, in connection with change (1) any proposed change, waiver, discharge or termination to any of the provisions provision of this Agreement as contemplated by clauses Section 10.01 or the definitions of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (iother than the definitions specified in clause (2) through (vof this Section 10.01(iv)(F)), inclusive, of without the first proviso to the third sentence of Section 12.1(a), the written consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B2) belowthe definitions of “Required Term Lenders”, to either (A) replace each such non-consenting Lender “Required Revolving Lenders, “Required U.S. Revolving Lenders” or Lenders (or, at “Required Global Revolving Lenders” without the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific written consent of the Required Term Lenders, Required Revolving Lenders, Required U.S. Revolving Lenders (determined before giving effect to the proposed action) thereto shall be requiredand Required Global Revolving Lenders, respectively; and provided, further, that (i) no amendment, waiver or consent shall, unless in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (writing and the withholding of any required consent signed by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any each Swing Line Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable addition to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (ii) any of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the extent necessary contrary herein, no Defaulting Lender shall have any right to provide for covenants approve or disapprove any amendment, waiver or consent hereunder, (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other terms applicable to any period after than Defaulting Lenders), except that (x) the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms consent of such Additional Term LoanDefaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Borrower for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Administrative Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) nor consent to the assignment or transfer any departure by the Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Borrower and by or on behalf of any of its rights the Administrative Agent and obligations under this Agreementthe Required Banks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then Borrower to any Bank hereunder, or (y) except as provided in effect without Section 2.04(e)(i), Section 2.08(c)(i), Section 2.09(i), Section 4.03(b)(i) and Section 10.06(c) hereof, increasing the amount, or extending the stated expiration or termination date, of any Bank's Commitment hereunder, or (z) changing this Section 10.01, Section 10.06 or Section 10.07 hereof or the definitions of the terms "Allocable Share", "Applicable Margin", "Event of Default", "Proportional Share", "Reference Bank", "Reference Banks", "Required Banks", "Commitment", "Total Commitment" and "Unmatured Event of Default", or changing the designation of the "Required Banks" as the Banks entitled to direct the Administrative Agent pursuant to Section 8.01 hereof, or changing any provision that by its express terms requires the consent of such Lender (it being understood that waivers each Bank, or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase releasing any Subsidiary of the Commitment of any LenderBorrower from its obligations under the Guarantee Agreement, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent or permitting a modification of the applicable Facing AgentDemand Loans as a result of which they would not be payable on demand, amendshall be effective unless the same shall be signed by or on behalf of each Bank; provided further that no such amendment, modify modification, supplement, termination, waiver or waive any provision consent, as the case may be, which has the effect of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3x) without increasing the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights duties or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facilityhereunder, or (7y) without increasing the consent standard of care or performance required on the part of the Majority Lenders of each Facility Administrative Agent hereunder, or (z) reducing or eliminating the indemnities or immunities to which the Administrative Agent is being allocated a lesser prepaymententitled hereunder (including, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in partwithout limitation, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing amendment or modification of all outstanding Term Loans this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Administrative Agent. Any waiver of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”)provision of this Agreement, provided that (a) and any Lender that does not consent to any departure by the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Borrower from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (ia)(i), ),
(i) extend the final scheduled maturity of any Loan Loan, Commitment or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders or amend, modify or waive any other provision of any Loan Document (other than the Receivables Intercreditor Agreements and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of Lenders (or Lenders of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in each case, for technical amendments with respect to additional revolving facilities, replacement loans or term loans commitments, extensions of maturity date or additional extensions of credit pursuant to this Agreement so long Sections 2.9, 2.13, 2.14 and 2.15 which, except as not otherwise restricted under such Sections, afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or Incremental Amendment No. 3 and Fifth Amendment Effective Date),
(viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement,
(v) amend or modify the provisions of Section 4.5(a), 10.5 or 12.6 in a manner that would by its terms alter the pro rata sharing of payments required thereby, except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15, or 231
(vi) amend or modify the definition of “Pro Rata Share”; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of “Multicurrency Revolving Sublimit”, Schedule 1.1(b), “Applicable LC Sublimit”, Schedule 1.1(g), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Administrative Agent and each Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Facing Agent with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent,
(4D) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered), or
(F) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment, except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and any Administrative Agent if (a) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (E) and (F) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual ▇▇▇▇▇idual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b) and 1.1(d) and any Receivables Intercreditor Agreement may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Non-U.S. Subsidiaries of Crown International Holdings as additional Subsidiary Borrowers upon (A) execution and delivery by European Borrower, any such Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c) (or such other form as mutually agreed by Crown Holdings and the Administrative Agent), providing for a Multicurrency Revolving Sublimit acceptable to U.K. Administrative Agent, (B) terminate delivery to Administrative Agents of (1) to the extent not previously delivered, the Additional Security Documents required pursuant to Section 7.14, (2) an opinion of counsel which covers matters reasonably satisfactory to Administrative Agent and (3) to the extent not previously delivered, all documentation and other information required under Section 5.1(f)(ii).
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery by European Borrower of a written request providing for such non-consenting Lender’s Revolving Commitment amendment and repay (B) repayment in full of all outstanding Loans and other Obligations of such Lender which gave rise to Subsidiary Borrower.
(iii) Any Receivables Intercreditor Agreement may be amended in writing by the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless parties thereto without the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders Lenders.
(determined before giving effect d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to the proposed action) thereto be delivered pursuant to Section 2.9, 2.13, 2.14 or 2.15, in connection with any Additional Facility, Replacement Term Loans, Replacement Term Commitments, Replacement Revolving Loans, Replacement Revolving Commitments, and/or any New Maturity Date, as applicable, this Agreement shall be required; provideddeemed amended without further action by any Lender to reflect, furtheras applicable, that in any event new Lenders and technical and conforming amendments to reflect the Borrower shall not have the right to replace a Lender, terminate terms of such Additional Facility.
(e) A Revolving Lender may allocate any proportion of its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of Revolving Credit Exposure with respect to any required waiver, amendment, modification, consent by such Lender) contemplated by the second proviso or any other 233 action pursuant to the third sentence of this Section 12.1(a)12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(cf) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Crown Holdings, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(dg) Notwithstanding the foregoing, upon with respect to amendments under Section 12.1(a) requiring the execution and delivery approval of all documentation required by Administrative Agent of the Lenders adversely affected thereby, if all such Lenders other than one or more Defaulting Lenders approve such amendment, the failure of such Defaulting Lenders to approve such amendment shall not prevent such amendment from becoming effective with respect to such Lenders approving such amendment (it being understood that such amendment will not be delivered pursuant effective with respect to Section 2.1(a)(iisuch Defaulting Lenders that do not approve such amendment).
(h) Notwithstanding the foregoing, amendments and waivers of Article IX (or any of financial definitions included in (and for purposes of) Article IX) will require only the consent of the Majority Lenders under the Revolving Facilities, the Term Loan A Facility and the Term Euro Facility and no other consents or approvals from any Lender shall be required.
(i) Notwithstanding anything to the contrary in any Loan Document, in connection with an Additional Term Loanany determination as to whether the requisite Lenders have (A) consented (or not consented) to any waiver, amendment or modification of any provision of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to this Agreement or any Loan Document or (C) directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to, or under, this Agreement or any other Loan Document, any Lender (other than an Excluded Lender) that, as a result of its interest (or its and its Covered Affiliates’ collective interests) in any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to bona fide market making activities), has a net short position with respect to any of the Loans or Commitments hereunder or with respect to any other tranche, class or series of Indebtedness for borrowed money incurred or issued by any Borrower or any of their Subsidiaries or Crown Holdings at such time of determination (including commitments with respect to any revolving credit facility) (each such item of Indebtedness, including the Loan and Commitments, “Specified Indebtedness” and each such Lender, a “Net Short Lender”) shall have no right to vote with respect to any waiver, amendment or modification of this Agreement or any other Loan Documents and shall be deemed amended to have voted its interest as a Lender without further action discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Net Short Lenders (including in any plan of reorganization). In connection with any waiver, amendment or modification of this Agreement or the other Loan Documents, each Lender (other 234 than any Excluded Lender) will be deemed to reflect, as applicable, the new Lenders have represented to Crown Holdings and the terms Administrative Agent that it does not constitute a Net Short Lender, in each case, unless such Lender shall have notified Crown Holdings and the Administrative Agent prior to the requested response date with respect to such waiver, amendment or modification that it constitutes a Net Short Lender (it being understood and agreed that Crown Holdings and the Administrative Agent shall be entitled to rely on each such representation and deemed representation).
(j) For purposes of such Additional Term Loan.the preceding clause:
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent, Collateral Agent, any Co-Collateral Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of:
(i) each Lender with Obligations directly affected thereby (whose consent shall be required for any such amendment, modification, supplement, waiver, discharge, termination or other change in addition to that of Required Lenders) (A) reduce the principal amount of any Loan or Note, (B) increase the Commitment of such Lender, (C) postpone the scheduled final maturity date of any Loan, or postpone the date or reduce the amount of any scheduled payment (but not prepayment) of principal on any Loan, (D) postpone the date on which any interest or fees are payable, (E) decrease the interest rate borne by any Loan (other than the waiver of any increase in the rate applicable to any of the Loans by application of the Default Rate) or the amount of any fees payable hereunder including any change in the manner in which any financial ratio used in determining any interest rate or fee is calculated that would result in a reduction of any such rate or fee in effect on the Restatement Date, (F) amend, modify or waive this Section 12.1(a)(i) or (G) amend, modify or waive Section 2.5(d);
(ii) each Lender (A) amend, modify or waive any provision of this Section 12.1(a) other than Section 12.1(a)(i), or reduce the percentage specified in the definition of Required Lenders or Super-Majority Lenders, (B) other than a Defaulting Lender) with Obligations directly affected thereby in the case , release all or substantially all of the following clause (i), (i) extend the final scheduled maturity of any Loan Subsidiary Guarantors or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iiiC) amendother than a Defaulting Lender, modify or waive any provision of this Section 12.1, (iv) reduce increase the percentage specified advance rates applicable to the Borrowing Base over those in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included effect on the date hereof) Restatement Date or (vD) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided;
(iii) the Super-Majority Lenders, furtheramend, that no such amendment, modificationmodify, supplement, waiverwaive or otherwise change, dischargeas applicable (A) the definition of “Availability”, termination (B) any defined terms which appear in the definition of “Borrowing Base” and would have the effect of increasing Availability or other change shall the Borrowing Base, (1C) increase the Commitments proviso at the end of any Lender over the amount thereof then in effect without the consent second-to-last sentence of such Lender Section 2.1(a) or (D) Section 3.1(a)(i)(A) (it being understood that waivers the establishment, modification or modifications elimination of conditions precedentreserves and adjustment, covenantsestablishment and elimination of criteria for Eligible Accounts Receivable and Eligible Inventory, Events of Default or Unmatured Events of Default shall in each case in accordance with the terms hereof will not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without be deemed to require the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Super-Majority Lenders);
(3iv) without the consent of the Administrative Agent, Collateral Agent or Co-Collateral Agents, (A) amend, modify or waive any provision of Article XI as same applies to the Administrative Agent, Collateral Agent or Co-Collateral Agents, respectively, or any other provisions as same relates to the rights or obligations of the Administrative Agent, Collateral Agent or Co-Collateral Agents, respectively, or (4B) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent, Collateral Agent or Co-Collateral Agents, respectively, under the other Loan Documents; or
(v) each Issuing Bank that has issued an outstanding Letter of Credit or has not been reimbursed for a payment under a Letter of Credit, (5) without the consent amend, modify or waive any provision of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for Article III as same applies to such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Issuing Bank.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through or (v), inclusive, ii) of the first proviso to the third sentence of this Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 4.13 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Administrative Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Administrative Agent and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (w) altering the pro rata sharing of payments required by, or other change shall pro rata funding requirements of, Section 2.09 or Section 9.08, (1x) increase reducing the Commitments rate or amount, or extending the stated maturity or due date, of any Lender over sum payable by the amount thereof then in effect without the consent of Company to any Bank hereunder or under such Lender Bank’s Notes (it being understood and agreed that waivers no amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase modification to the definitions of the Commitment 2019 Baseline GHG Emissions, the 2021 GHG Emissions, KPI Metric, the Threshold A, the Target A or to Section 2.15 shall constitute a reduction in the rate of interest or in the rate at which fees accrue for purposes of this clause (x)) or (y) except as provided in Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i) and Section 10.06(c) hereof, increasing the amount, or extending the stated expiration or termination date, of any LenderBank’s Revolving Credit Commitment hereunder, and that an increase in or (z) changing this Section 10.01, Section 10.06 or Section 10.07 hereof or the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent definitions of the applicable Facing Agentterms “Allocable Share”, amend“Applicable Facility Fee Percentage”, modify “Applicable Margin”, “Event of Default”, “Proportional Share”, “Required Banks”, “Revolving Credit Commitment”, “Total Commitment” and “Unmatured Event of Default”, or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without changing the consent designation of the Administrative Agent, amend, modify or waive any provision of Article XI “Required Banks” as same applies the Banks entitled to direct the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, on behalf of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses each Bank; provided further that (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of no such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Issuing Bank hereunder, (y) increasing the standard of care or performance required on the part of any Agent or Issuing Bank hereunder, or (Bz) terminate such non-consenting Lender’s Revolving Commitment reducing or eliminating the indemnities or immunities to which any Agent or Issuing Bank is entitled hereunder (including, without limitation, any amendment or modification of this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Issuing Bank affected thereby, as the case may be and repay all outstanding Loans of such Lender which gave rise (ii) notwithstanding anything to the need to obtain such Lender’s consent, contrary in accordance with this Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing10.01, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b3.03(b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans and Section 2.15(g). Any waiver of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseprovision of this Agreement, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable consent to any period after departure by the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Majority Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent hereunder without the prior written consent of each Lender such Agent.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative USActive 54953942.1755479929.4-146- Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
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Sources: Revolving Credit and Security Agreement (Ares Capital Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed waiver of or to any provision of this Agreement or any Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of Borrower and the Required Lenders; provided provided, however, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in shall be required to effect any amendment, modification, supplement, termination, waiver or consent, as the case may be (any of the following clause (iforegoing, a "Modification"), which has the effect of
(i) extend reducing the aggregate principal amount of, or interest rate on, any of the Notes or releasing any Subsidiary Guarantor (other than as a result of a transaction permitted by Section 8.4 or an Asset Disposition made in accordance with the terms of this Agreement) or reducing the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final scheduled maturity of any of the Commitments or the Notes or extending the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Commitments or Notes (it being understood that modifying or waiving any Event of Default or Unmatured Event of Default (other than an Event of Default described in Section 9.1(a)(i)) or amending the mandatory prepayment provisions or financial covenants shall not constitute an extension of the final stated maturity or extension of the date of any payment of any Commitment, Loan or Note Note); or
(includingiii) changing this proviso or the first sentence of Section 11.8(a), without limitation, by amending or modifying reducing the proviso contained percentage specified in the definition of Revolver Termination Date or Term B Loan Maturity Date)the term "Required Lenders", or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers in connection with a permitted assignment by any Lender under this Agreement) the definition of Default Rate interestthe terms "Commitment" or "Commitment Percentage" (it being understood with respect to all of the foregoing that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders);
(iv) or fees thereon, or reduce or forgive releasing any of the principal amount thereof, Pledged Subsidiary Interests (iiexcept as expressly provided in the applicable Security Documents) release under all or substantially all of the Security Documents; or
(v) releasing any of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii11.20(b)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Agent shall be required to effect any Modification that has the effect of (it being understood that waivers x) increasing the duties or modifications obligations of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender)Agent, (2y) without increasing the consent standard of care or performance required on the applicable Facing part of Agent, amendor (z) reducing or eliminating the indemnities, modify exculpations or waive immunities to which Agent is entitled. Any Modification of or to any provision of Section 2.9 this Agreement shall be effective only in the specific instance and for the specific purpose for which made or alter such Facing Agent’s rights given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent demand on Borrower or any other provisions as same relates Person in any case shall entitle Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed amendment, change, supplement, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a11.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 3.5 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving 's Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b) and 4.34.2(b); provided that, unless the Revolving Commitment is terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a11.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of Default Rate interest) or fees thereonInterest), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders Lenders, “Required Domestic Lenders”, “Required European Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Intercreditor Agreements, with the consent Sharing Agreement and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case of an amendment pursuant to Section 2.1(a)(ii))each case, the definition of “Required Lenders” shall include lenders for technical amendments with respect to additional revolving loans or term loans extensions of credit pursuant to this Agreement so long as Section 2.9 which afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or , or
(viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Euro Revolving Sublimit, Schedule 1.1(b) conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Administrative Agent and each Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Facing Agent with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent,
(4D) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and any Administrative Agent if (a) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (E) through (F) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b), and 1.1(d) may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Foreign Subsidiaries of Crown International Holdings as additional Subsidiary Borrowers upon (A) execution and delivery by European Borrower, any such Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for a Euro Revolving Sublimit acceptable to U.K. Administrative Agent, (B) delivery to Administrative Agents of (1) to the extent not previously delivered, the Additional Security Documents required pursuant to Sections 7.14 and (2) an opinion of counsel which covers matters reasonably satisfactory to Administrative Agent.
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery by European Borrower of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Subsidiary Borrower.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.9 in connection with an Additional Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, any new Lenders and technical and conforming amendments to reflect the terms of such Additional Facility.
(e) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Credit Parties, the Required Lenders and Administrative Agent (and, if their rights or obligations are affected thereby, each other Agent and each Facing Agent) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(f) A Revolving Lender may allocate any proportion of its Revolving Credit Commitment or Revolving Credit Exposure with respect to any waiver, amendment, modification, consent or any other action pursuant to this Section 12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Crown Holdings, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
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No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of Default Rate interest) or fees thereonInterest), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood thatLenders, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Domestic Lenders”, “Required European Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any other provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment Document (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a)Intercreditor Agreements, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (Sharing Agreement and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In additionSecurity Documents, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.which are governed by
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No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement shall be effective unless it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ) and a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section 12.01(b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1hereof, (ivH) reduce extend the percentage specified Reinvestment Period or (I) modify the definitions of “Collateral Quality Test”, “Coverage Test”, “Interest Coverage Ratio Test”, “Minimum Overcollateralization Ratio Test” or “Portfolio Advance Rate” or any definition used therein;
(ii) any amendment, modification, supplement or waiver of Article VIII, Article XI, or of any of the other rights or duties of either Agent (including the Collateral Agent in the definition of Required Lenders (it being understood thatits role as Custodian) hereunder, with shall require the consent of the Required Lenders such Agent; and
(or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofiii) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall (1) increase the Commitments waiver of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent under this Agreement or any other provisions as same relates to Facility Document that governs the rights or and obligations of the Administrative Agent, CP Lenders or their Conduit Support Providers (4including this Section 12.01(b)(iii)) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repaymentsamendments, modifications, supplements and waivers that apply generally to Lenders) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required that specifically relates to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto CP Conduits shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with effective without the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsCP Lender.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
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Sources: Credit and Security Agreement (TPG Specialty Lending, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent, Collateral Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent, Collateral Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; provided provided, however, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i)), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time scheduled date of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofthereof or the amount of fees thereon), (ii) release all or substantially all of the Collateral under the Security Documents (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such additional revolving loans or term loans are may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments Commitment of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default or of a mandatory reduction in the Total Commitments shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, Agent or (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed changeamendment, modification, supplement, waiver, discharge discharge, termination or termination other change to or of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.l(b) and and/or 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent hereunder without the prior written consent of each Lender such Agent.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders other than Defaulting Lenders), except that (x) the Individual Lender Maximum Funding Amount of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
(e) With respect to any Applicable Index other than LIBOR (Dollar), upon the occurrence of any event that results in the unavailability of such Applicable Index, the index rate shall be the reference rate reasonably determined by the Administrative Agent giving due consideration to any evolving or then existing convention for similar multi-currency denominated syndicated credit facilities for alternate benchmarks, and as to which the Administrative Agent may, in its reasonable discretion, make such adjustments to such rate or the Lenders providing Additional Term Loans spread thereon, as well as the business day convention, interest determination dates and related provisions and definitions, in each case, that are consistent with such accepted market practice for the case use of an amendment pursuant to Section 2.1(a)(ii)), such rate; provided that the definition of “Required Lenders” shall include lenders Administrative Agent has made similar determinations with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreementsimilarly situated borrowers in similar facilities; provided, further, that no if the Borrower does not agree with such amendmentindex rate, modification, supplement, waiver, discharge, termination or other change shall (1) increase in the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase reasonable discretion of the Commitment of Borrower, any LenderAdvances with such Applicable Index shall be converted into Dollar Advances, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of using the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to exchange rate determined by the Administrative Agent or any other provisions as same relates in its reasonable discretion pursuant to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)“Dollar Equivalent”.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender Secured Party, at law or in equity or otherwiseequity. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is waiver of this Agreement shall be effective unless the same shall be in writing and signed by each of the Borrower, the Conduit Lenders, the Majority Lenders and the Program Agent. The Program Agent shall give written notice to S&P prior to the effectiveness of any material amendment or modification of this Agreement. Any waiver of any provision of this Agreement, and any consent to any departure by the Borrower from the terms of any provision of this Agreement, shall be effective only in the specific instance and for the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other change shallcircumstances. Notwithstanding the foregoing, in no event shall the Direct Lender Commitment of any Direct Lender be extended or increased without the written consent of such Direct Lender.
(b) Notwithstanding anything in Section 9.01(a) of this Agreement to the contrary, the Program Agent agrees that it shall not, without the prior written consent of each Lender (other than a Defaulting affected Direct Lender) with Obligations directly affected thereby in the case of the following clause :
(i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive (or consent to any amendment, waiver or modification of) any provision of this Section 12.1, Agreement or any other Program Document which in any way would:
(ivA) reduce the percentage specified outstanding principal balance of the Advances or the amount of principal or interest that is payable in respect of the Advances made by such Direct Lender or delay any scheduled date for payment thereof, or
(B) impair any rights expressly granted to such Direct Lender under any Program Document, or
(C) reduce the fees, indemnities or other amounts payable under the Program Documents to or for the account of any Direct Lender, or out of which fees, indemnities or other amounts to such Direct Lender shall be paid, or delay the dates on which such fees, indemnities or other amounts are payable, or
(D) change the definition of Required Lenders Aggregate Custodian’s Advance Amount, Asset Coverage Test, Asset Value, Advance Rate (it being understood thatincluding Schedule III hereto), with Borrowing Base, Borrowing Base Eligible Asset, Borrowing Base Excess Amount, Borrowing Base Test, Adjusted Asset Value, Class A Bond Assets, Class A CDS, Class A Loan Asset, Class B Bond Assets, Class B CDS, Class B Loan Asset, Class C Bond Assets, Class C CDS, Class D Bond Assets, Class D CDS, Credits Outstanding, Custodian’s Overdraft Advances, Distressed Asset, Eligible Bond Assets, Eligible CDX, Eligible Collateral, Eligible Commercial Paper Note, Eligible Credit Default Swaps, Eligible Debt Securities, Eligible DIP Asset, Eligible Foreign Currency Asset, Eligible Government Security, Eligible LCDX, Eligible Loan Asset, Eligible Second Lien Loan Asset, Eligible Swap Counterparty, Foreign Asset, Foreign Currency Asset, Industry Class, Leverage Ratio, Loan Asset, Majority Lenders, Non-OECD Asset, OECD Country, or Value, or
(E) amend any provision of any Program Document which by the express terms of such provision requires the consent of all of the Required Secondary Lenders (or the Direct Lenders providing Additional Term Loans in the case to any waiver of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans such provision or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without requires the consent of all Secondary Lenders or Direct Lenders as a condition of the Borrower’s non-compliance with such Lender provision, or
(it being understood that waivers F) amend any provision of any Program Document in order to change the percentage of Secondary Lenders or modifications of conditions precedentDirect Lenders required for any consent, covenantswaiver or amendment to such provision, Events or
(ii) amend or waive this Section 9.01(b); or
(iii) amend or waive any Default or Event of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions similar event relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option bankruptcy of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans or any Affiliate of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)Borrower.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Invesco Dynamic Credit Opportunities Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Collateral Manager in any case shall entitle the Borrower or the Collateral Manager to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Majority Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent or the Collateral Administrator hereunder without the prior written consent of each Lender such Agent or the Collateral Administrator.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Lord Abbett Private Credit Fund S)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Syndication Agents or the Administrative Agent or any Lender Bank or the Issuing Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Syndication Agents, the Administrative Agent Agent, any Bank or any Lender the Issuing Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Syndication Agents, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Syndication Agents and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Banks; PROVIDED, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, furtherHOWEVER, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then in effect without the consent of Company to any Bank hereunder or under such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such FacilityBank's Notes, or (7y) without except as provided in Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i), Section 4.03(b)(ii) and Section 10.06(c) hereof, increasing the consent amount, or extending the stated expiration or termination date, of any Bank's Revolving Credit Commitment hereunder, or (z) changing this Section 10.01, Section 10.06 or Section 10.07 hereof or the definitions of the Majority Lenders terms "Allocable Share", "Applicable Facility Fee Percentage", "Applicable Margin", "Event of each Facility which is being allocated a lesser prepaymentDefault", repayment "Proportional Share", "Reference Bank", "Reference Banks", "Required Banks", "Revolving Credit Commitment", "Total Commitment" and "Unmatured Event of Default", or commitment reduction, alter changing the required application designation of any prepayments or repayments (or commitment reduction), the "Required Banks" as between the various Facilities Banks entitled to direct the Syndication Agents pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any on behalf of each Bank; PROVIDED FURTHER that no such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Managing Agent or the Issuing Bank hereunder, or (By) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans increasing the standard of such Lender which gave rise to care or performance required on the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition part of new Lenders any Agent or any Managing Agent or the increase of Issuing Bank hereunder, or (z) reducing or eliminating the Commitments and/or outstanding Loans of existing Lenders indemnities or immunities to which any Agent or Managing Agent or the Issuing Bank is entitled hereunder (who in each case must specifically consent thereto)including, then in the case of without limitation, any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing amendment or modification of all outstanding Term Loans this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Managing Agent affected thereby or the Issuing Bank, as the case may be. Any waiver of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”)provision of this Agreement, provided that (a) and any Lender that does not consent to any departure by the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Five Year Credit Agreement (Occidental Petroleum Corp /De/)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, 91 100 without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iviii) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such additional revolving loans or term loans are may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement, or release the Company from its guaranty under Article XIII; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments Commitment of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that (A) the Commitments may be increased as provided in Section 4.1(c), (B) waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that (C) an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, or (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed changeamendment, modification, supplement, waiver, discharge discharge, termination or termination other change to any of the provisions of this Agreement as contemplated by clauses (i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.l(b) and 4.3and/or 4.2; provided provided, however, that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.existing
Appears in 1 contract
Sources: Credit Agreement (Glatfelter P H Co)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement shall be effective unless (i) it is in writing signed by the Borrower and the Required Lenders (or the Administrative Agent on behalf of the Required Lenders; ), (ii) it is consented to by the Collateral Servicer, (iii) if it affects the rights or obligations of the Originator with respect to any Facility Document, it is consented to by the Originator, and (iv) notice thereof has been delivered to the Rating Agency, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Administrative Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in permitted or required hereunder, (F) alter the Security Documents) terms of Section 9.01 or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary this Section 13.01(b), or (yG) modify in connection with a transaction permitted by Section 8.3), (iii) amend, modify any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1, hereof; and
(ivii) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver of Article VIII, waiverArticle XI, dischargeArticle XII, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent other rights or duties of the applicable Facing AgentAdministrative Agent or Trustee hereunder, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflectTrustee, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (NewStar Financial, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Syndication Agents or the Administrative Agent or any Lender Bank or the Issuing Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Syndication Agents, the Administrative Agent Agent, any Bank or any Lender the Issuing Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Syndication Agents, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Syndication Agents and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then in effect without the consent of Company to any Bank hereunder or under such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing AgentBank’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such FacilityNotes, or (7y) without except as provided in Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i), Section 4.03(b)(ii) and Section 10.06(c) hereof, increasing the consent amount, or extending the stated expiration or termination date, of any Bank’s Revolving Credit Commitment hereunder, or (z) changing this Section 10.01, Section 10.06 or Section 10.07 hereof or the definitions of the Majority Lenders terms “Allocable Share”, “Applicable Facility Fee Percentage”, “Applicable Margin”, “Event of each Facility which is being allocated a lesser prepaymentDefault”, repayment “Proportional Share”, “Reference Bank”, “Reference Banks”, “Required Banks”, “Revolving Credit Commitment”, “Total Commitment” and “Unmatured Event of Default”, or commitment reduction, alter changing the required application designation of any prepayments or repayments (or commitment reduction), the “Required Banks” as between the various Facilities Banks entitled to direct the Syndication Agents pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any on behalf of each Bank; provided further that no such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Managing Agent or the Issuing Bank hereunder, or (By) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans increasing the standard of such Lender which gave rise to care or performance required on the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition part of new Lenders any Agent or any Managing Agent or the increase of Issuing Bank hereunder, or (z) reducing or eliminating the Commitments and/or outstanding Loans of existing Lenders indemnities or immunities to which any Agent or Managing Agent or the Issuing Bank is entitled hereunder (who in each case must specifically consent thereto)including, then in the case of without limitation, any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing amendment or modification of all outstanding Term Loans this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Managing Agent affected thereby or the Issuing Bank, as the case may be. Any waiver of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”)provision of this Agreement, provided that (a) and any Lender that does not consent to any departure by the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Five Year Credit Agreement (Occidental Petroleum Corp /De/)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in 108 writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i)), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by it being understood that amending or modifying the proviso contained in definitions of Scheduled Term Repayments (other than the definition of Revolver Termination Date or Term B Loan Maturity Date), ) or amending the mandatory prepayment provisions or financial covenants shall not constitute an extension of the final scheduled maturity of any Loan or Note) or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in this Agreement or in the Security Document as in effect on the Closing Date) under all the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such (including, without limitation, any new or additional revolving loans or term loans are Facility) may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Term Loans and Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of Agent or the Administrative Collateral Agent, amend, modify or waive any provisions relating to the rights or obligations of Agent or the Administrative Collateral Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered), (6) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders, (7) without the consent of the Majority Lenders of the Term Facility, amend the definition of Term Pro Rata Share, and without the consent of the Majority Lenders of the Revolving Facility amend the definition of Revolver Pro Rata Share, or (8) without the consent of the Majority Lenders of the Term Facility, amend the definition of Scheduled Term Repayments.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the 109 respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.l(b) and and/or 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second first proviso to the third sentence of this Section 12.1(a12.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Administrative Agent and the Required Lenders; , provided that that:
(i) subject to clauses (iii) and (iv) below, any Fundamental Amendment shall require the written consent of each affected Lender;
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive any provision of this Section 12.1otherwise affect the rights, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood thatduties, with the consent immunities or liabilities of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect Administrative Agent without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the prior written consent of the Administrative Agent;
(iii) the parties acknowledge and agree that increases in
(A) (x) the Committed Facility Amount shall be allocated pro rata between the Class A Committed Facility Amount and the Class B Committed Facility Amount and (y) the Incremental Amount shall be allocated pro rata between the Class A Incremental Amount and the Class B Incremental Amount,
(B) the Class A Committed Facility Amount or Class A Incremental Amount, amendmay be allocated at the Administrative Agent’s sole discretion (which may not be on a pro-rata basis) among the existing Class A Lenders agreeing to provide such increased amount, modify or waive any provision new Class A Lender joining this Agreement (subject to the requirements of Article XI as same applies to Section 13.02) (such existing and new Class A Lenders, collectively, the “Class A Increasing Lenders”), and
(C) the Class B Committed Facility Amount or Class B Incremental Amount (x) shall be first offered by the Administrative Agent to the existing Class B Lenders on a pro-rata basis, who may decide in their sole discretion to accept such offer (the “Accepting Class B Lenders”) and (y) if any such Class B Lender declines to accept such offer, such Class B Lender’s applicable pro-rata portion may be allocated at the Administrative Agent’s sole discretion (which may not be on a pro-rata basis) among the Accepting Class B Lenders, or any other provisions as same relates new Class B Lender joining this Agreement (subject to the rights or obligations requirements of Section 13.02) (the Accepting Class B Lenders and the new Class B Lenders, collectively, the “Class B Increasing Lenders”), and in the case of clauses (A) through (C) above, shall require the written consent of solely the Borrower, the Administrative Agent, the Class A Increasing Lenders and the Class B Increasing Lenders; and
(4iv) without the consent of parties acknowledge and agree that decreases in the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, Committed Facility Amount shall be allocated pro rata (5x) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(aClass A Committed Facility Amount and the Class B Committed Facility Amount and (y) (although the Required among all Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)their respective Percentages.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Sezzle Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed waiver of or to any provision of this Agreement or any Revolving Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of Borrower and the Required Majority Lenders; provided PROVIDED, HOWEVER, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in shall be required to effect any amendment, modification, supplement, termination, waiver or consent, as the case may be (any of the following clause (iforegoing, a "Modification"), which has the effect of
(i) extend reducing the aggregate principal amount of, or interest rate on, any of the Revolving Notes or releasing any Subsidiary Guarantor (other than as a result of a transaction permitted by SECTION 8.4 or an Asset Disposition made in accordance with the terms of this Agreement) or reducing the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final scheduled maturity of any Loan of the Revolving Commitments or Note the Revolving Notes or the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments or the Revolving Notes (includingother than by way of (a) Modification of any provision for, without limitationor having the effect of requiring, by amending any mandatory prepayment of any portion of any Loan, or modifying (b) Modification or waiver of any Event of Default (other than an Event of Default described in SECTION 9.1(a)(i), 9.1(g) or 9.1(h)) or Unmatured Event of Default); or
(iii) changing this proviso or the proviso contained first sentence of SECTION 11.9(a), reducing the percentage specified in the definition of Revolver Termination Date or Term B Loan Maturity Date)the term "Majority Lenders", or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers in connection with a permitted assignment by any Lender under this Agreement) the definition of Default Rate interest) the terms "Revolving Commitment" or fees thereon, or reduce or forgive the principal amount thereof, "Commitment Percentage" (ii) release all or substantially it being understood with respect to all of the Collateral foregoing that, with the consent of the Majority Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Majority Lenders on substantially the same basis as the extensions of Revolving Commitments are included in such determination on the date hereof); or
(iv) releasing any of the Pledged Stock (except as expressly provided in the applicable Security Documents) or release under all of the Security Documents. PROVIDED, FURTHER, that the consent of Agent shall be required to effect any Guarantor (other than Modification that has the effect of (x) a Guarantor that is not a Material Subsidiary increasing the duties or obligations of Agent, (y) in connection with a transaction permitted by Section 8.3)increasing the standard of care or performance required on the part of Agent, or (iiiz) amendreducing or eliminating the indemnities, modify exculpations or waive immunities to which Agent is entitled. Any Modification of or to any provision of this Section 12.1, (iv) reduce the percentage specified Agreement shall be effective only in the definition of Required Lenders (it being understood that, with specific instance and for the consent of the Required Lenders (specific purpose for which made or the Lenders providing Additional Term Loans given and only if in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer writing. Except where notice is specifically required by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination notice to or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent demand on Borrower or any other provisions as same relates Person in any case shall entitle Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed amendment, change, supplement, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viii), inclusive, of the first proviso to the third sentence of Section 12.1(aSECTION (a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section SECTION 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(bSECTION 4.4(b) and 4.3and/or 4.2(c); provided PROVIDED that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), ) the specific consent of the Required Majority Lenders (determined before giving effect to the proposed action) thereto shall be required; providedspecifically consent thereto, furtherPROVIDED, FURTHER, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second first proviso to the third sentence of Section 12.1(athis SECTION 11.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; provided , provided, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall:
(i) without the consent of Lenders holding at least 80% of the principal amount of the affected Term Loans reduce the amount of or postpone the date of any Scheduled Term Loan Principal Payments;
(ii) without the consent of Lenders holding at least 66-2/3% of all Loans:
(A) amend, modify or waive any provision of Section 4.2(b), Section 4.2(c) (including for purposes hereof the definition of Excess Cash Flow set forth in Section 1.1), Section 4.2(e) or Section 4.2(g), or
(B) prior to the Minimum Term B Prepayment, amend, modify or waive any provision of Section 8.1 or Section 8.2;
(iii) without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (iA), ):
(iA) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof),
(B) other than as expressly permitted under Section 12.17(b)(i)(A)-(C), (ii) effect any release all of assets with a book value aggregating 5% or substantially all more of the Collateral total consolidated tangible assets of Borrower (except measured as expressly provided in of the Security Documentsend of the most recently completed Fiscal Quarter for which financial statements have been delivered to Administrative Agent) or release any Guarantor during the term of this Agreement,
(other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iiiC) amend, modify or waive any provision of this Section 12.1, 12.1(a),
(ivD) reduce the percentage specified in the definition of Required Lenders or Supermajority Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Lenders, the definition of “Required Lenders” or “Supermajority Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or Agreement),
(vE) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided,
(F) amend the definition of Pro Rata Share, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall or
(1G) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, 4.2(j);
(3iv) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4v) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ;
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7vi) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment prepayment or commitment reductionrepayment, alter the required application of any prepayments or repayments (or commitment reduction)repayments, as between the various Facilities pursuant to the first sentence of Section 4.3(a) and the second sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered);
(vii) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders;
(viii) without the consent of Supermajority Lenders:
(A) amend, modify or waive Section 8.3 so as to permit any Acquisition involving a total Investment in an amount in excess of $20 million,
(B) amend, modify or waive any provision of Section 8.4, 8.8, 8.16(b) or 8.16(c),
(C) amend, modify or waive any provision of Section 8.1, 12.17(b), the Security Documents or the Intercreditor Agreement so as to expressly agree that any Liens shall be senior to the Liens securing the Obligations, other than Liens securing the Priority Loans, or
(D) amend, modify or waive Section 8.2 to permit any Receivables Facility Attributed Indebtedness; or
(ix) without the consent of Lenders holding at least 80% of all Loans, amend, modify or waive Section 8.16(a).
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (vix), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, below to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 3.6 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.312.1(a); provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be requiredspecifically consent thereto; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment Lender or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of this Section 12.1(a12.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Huntsman Petrochemical Finance Co)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed waiver of or to any provision of this Agreement or any Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of Borrower and the Required Lenders; provided provided, however, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in shall be required to effect any amendment, modification, supplement, termination, waiver or consent, as the case may be (any of the following clause (iforegoing, a "Modification"), which has the effect of
(i) extend reducing the aggregate principal amount of, or interest rate on, any of the Revolving Notes or Term Notes or releasing any Subsidiary Guarantor (other than as a result of a transaction permitted by Section 8.4 or an Asset Disposition made in accordance with the terms of this Agreement) or reducing the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final scheduled maturity of any of the Revolving Commitments, Term Loans or the Notes or extending the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments, Term Loans or Notes (it being understood that modifying or waiving any Event of Default or Unmatured Event of Default (other than an Event of Default described in Section 9.1(a)(i), 9.1(g) or 9.1(h)) or amending the mandatory prepayment provisions or financial covenants shall not constitute an extension of the final stated maturity or extension of the date of any payment of any Commitment, Loan or Note Note); or
(includingiii) changing this proviso or the first sentence of Section 11.9(a), without limitation, by amending or modifying reducing the proviso contained percentage specified in the definition of Revolver Termination Date or Term B Loan Maturity Date)the term "Required Lenders", or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers in connection with a permitted assignment by any Lender under this Agreement) the definition of Default Rate interestthe terms "Revolving Commitment", "Term Loans" or "Commitment Percentage" (it being understood with respect to all of the foregoing that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders);
(iv) or fees thereon, or reduce or forgive releasing any of the principal amount thereof, Pledged Stock (iiexcept as expressly provided in the applicable Security Documents) release under all or substantially all of the Security Documents; or
(v) releasing any of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii11.20(b)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)) (it being understood with respect to all of the foregoing that, with the consent of the Required Lenders, the definition of Majority Lenders may be amended to permit additional extensions of credit as otherwise permitted by this Agreement) or (2) amend the definitions of "Borrowing Base", "Eligible Receivables", or "Eligible Inventory" without the consent of the Supermajority Lenders of the Revolving Loan Facility; provided, further, that the consent of Agent shall be required to effect any Modification that has the effect of (x) increasing the duties or obligations of Agent, (y) increasing the standard of care or performance required on the part of Agent, or (z) reducing or eliminating the indemnities, exculpations or immunities to which Agent is entitled; Any Modification of or to any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which made or given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or demand on Borrower or any other Person in any case shall entitle Borrower or such other Person to any other or further notice or demand in similar or other circumstances.
(b) If, in connection with any proposed amendment, change, supplement, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a11.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting non‑consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting non‑consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting non‑consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.l(b) and 4.3and/or 4.2; provided that, unless the Revolving Commitment is terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a11.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Administrative Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Administrative Agent and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (w) altering the pro rata sharing of payments required by, or other change shall pro rata funding requirements of, Section 2.09 or Section 9.08, (1x) increase reducing the Commitments rate or amount, or extending the stated maturity or due date, of any Lender over sum payable by the amount thereof then in effect without the consent of Company to any Bank hereunder or under such Lender Bank’s Notes (it being understood and agreed that waivers no amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase modification to the definitions of the Commitment 2019 Baseline GHG Emissions, KPI Metric, the Threshold A, the Target A or to Section 2.15 nor a KPI Amendment shall constitute a reduction in the rate of interest or in the rate at which fees accrue for purposes of this clause (x)) or (y) except as provided in Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i) and Section 10.06(c), increasing the amount, or extending the stated expiration or termination date, of any LenderBank’s Revolving Credit Commitment hereunder, and that an increase in or (z) changing this Section 10.01, Section 10.06 or Section 10.07 or the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent definitions of the applicable Facing Agentterms “Allocable Share”, amend“Applicable Facility Fee Percentage”, modify “Applicable Margin”, “Event of Default”, “Proportional Share”, “Required Banks”, “Revolving Credit Commitment”, “Total Commitment” and “Unmatured Event of Default”, or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without changing the consent designation of the Administrative Agent, amend, modify or waive any provision of Article XI “Required Banks” as same applies the Banks entitled to direct the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although 8.01 shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, on behalf of any such prepayment, repayment or commitment reduction each Bank which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses directly affected thereby; provided further that (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of no such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Issuing Bank hereunder, (y) increasing the standard of care or performance required on the part of any Agent or Issuing Bank hereunder, or (Bz) terminate such non-consenting Lender’s Revolving Commitment reducing or eliminating the indemnities or immunities to which any Agent or Issuing Bank is entitled hereunder (including, without limitation, any amendment or modification of this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Issuing Bank affected thereby, as the case may be and repay all outstanding Loans of such Lender which gave rise (ii) notwithstanding anything to the need to obtain such Lender’s consent, contrary in accordance with this Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing10.01, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b3.03(b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans and Section 2.15(g). Any waiver of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseprovision of this Agreement, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable consent to any period after departure by the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Majority Lenders, provided that:
(i) any Fundamental Amendment shall require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive any provision otherwise affect the rights or duties of this Section 12.1the Administrative Agent, (iv) reduce the percentage specified in Backup Servicer, the definition of Required Lenders (it being understood that, with Successor Servicer or the Custodian hereunder without the prior written consent of the Required Lenders (Administrative Agent, the Backup Servicer, the Successor Servicer or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansCustodian, as the case may be, are included on the date hereof.
(c) or (v) consent Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Borrower consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Newtek Business Services Corp.)
No Waiver; Modifications in Writing. (akk) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(a) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders, provided that:
(i) any Fundamental Amendment shall also require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive any provision otherwise affect the rights or duties of this Section 12.1, (iv) reduce the percentage specified in Administrative Agent or the definition of Required Lenders (it being understood that, with Custodian hereunder without the prior written consent of the Required Lenders (Administrative Agent or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansCustodian, as the case may be, are included on the date hereof.
(b) or (v) consent Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Borrower consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Loans shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender Secured Party, at law or in equity or otherwiseequity. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, supplement or termination or other change is of this Agreement shall be effective unless the same shall be in writing and signed by each of the Borrower, the Required Lenders and the Agent. Any waiver of any provision of this Agreement, and any consent to any departure by the Borrower from the terms of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given and shall be in writing and signed by the Borrower Agent and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination . No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other change shallcircumstances.
(b) Notwithstanding anything in Section 10.01(a) of this Agreement to the contrary, the Agent agrees that it shall not, without the prior written consent of each Lender (other than a Defaulting affected Lender) with Obligations directly affected thereby in the case of the following clause :
(i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive (or consent to any amendment, waiver or modification of) any provision of this Section 12.1, Agreement or the Custodial and Account Control Agreement which in any way would:
(ivA) reduce the percentage specified outstanding principal balance of any Loan or the amount of principal or interest that is payable in respect of any Loan made by such Lender or delay any scheduled date for payment thereof, or
(B) impair any material rights expressly granted to such Lender under any such Credit Document, or
(C) amend any provision of any such Credit Document which by the definition express terms of Required Lenders (it being understood that, with such provision requires the consent of the Required Lenders (or all of the Lenders providing Additional Term Loans in to any waiver of such provision or requires the case consent of an amendment pursuant to Section 2.1(a)(ii))all Lenders as a condition of the Borrower's non-compliance with such provision, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofor
(D) or (v) consent to the assignment or transfer by the Borrower amend any provision of any such Credit Document in order to change the percentage of its rights and obligations Lenders required for any consent, waiver or amendment to such provision, or
(E) release any Collateral from the Lien under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall or
(1ii) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify amend or waive any provision of this Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered10.01(b).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed waiver of or to any provision of this Agreement or any Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of Borrower and the Required Majority Lenders; provided provided, however, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in shall be required to effect any amendment, modification, supplement, termination, waiver or consent, as the case may be (any of the following clause (iforegoing, a “Modification”), which has the effect of
(i) extend reducing the aggregate principal amount of, or interest rate on, any of the Revolving Notes or Term Notes or releasing any Subsidiary Guarantor (other than as a result of a transaction permitted by Section 8.4 or an Asset Disposition made in accordance with the terms of this Agreement) or reducing the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final scheduled maturity of any Loan of the Revolving Commitments, Term Loans or Note the Notes or the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments, Term Loans or the Notes (includingother than by way of (a) Modification of any provision for, without limitationor having the effect of requiring, by amending any mandatory prepayment of any portion of any Loan, or modifying (b) Modification or waiver of any Event of Default (other than an Event of Default described in Section 9.1(a)(i), 9.1(g) or 9.1(h)) or Unmatured Event of Default); or
(iii) changing this proviso or the proviso contained first sentence of Section 11.9(a), reducing the percentage specified in the definition of Revolver Termination Date or Term B Loan Maturity Date)the term “Majority Lenders”, or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers in connection with a permitted assignment by any Lender under this Agreement) the definition of Default Rate interestthe terms “Revolving Commitment”, "Term Loans" or “Commitment Percentage” (it being understood with respect to all of the foregoing that, with the consent of the Majority Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Majority Lenders on substantially the same basis as the extensions of Revolving Commitments are included in such determination on the date hereof);
(iv) or fees thereon, or reduce or forgive releasing any of the principal amount thereof, Pledged Stock (iiexcept as expressly provided in the applicable Security Documents) release under all or substantially all of the Security Documents; or
(v) releasing any of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii11.20(b)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Agent shall be required to effect any Modification that has the effect of (it being understood that waivers x) increasing the duties or modifications obligations of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender)Agent, (2y) without increasing the consent standard of care or performance required on the applicable Facing part of Agent, amendor (z) reducing or eliminating the indemnities, modify exculpations or waive immunities to which Agent is entitled. Any Modification of or to any provision of Section 2.9 this Agreement shall be effective only in the specific instance and for the specific purpose for which made or alter such Facing Agent’s rights given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent demand on Borrower or any other provisions as same relates Person in any case shall entitle Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed amendment, change, supplement, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a11.1(a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-–consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-–consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-–consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b4.l(b) and 4.3and/or 4.2; provided that, unless the Revolving Commitment is terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), ) the specific consent of the Required Majority Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a11.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Second Amendment and Restatement Agreement (BMC Industries Inc/Mn/)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement shall be effective unless it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ) and a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section 12.01(b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof or (H) extend the Reinvestment Period;
(ii) any amendment, modification, supplement or waiver of this Section 12.1Article VIII, Article XI, or of any of the other rights or duties of either Agent (ivincluding the Collateral Agent in its role as Custodian) reduce the percentage specified in the definition of Required Lenders (it being understood thathereunder, with shall require the consent of the Required Lenders such Agent; and
(or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofiii) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall (1) increase the Commitments waiver of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent under this Agreement or any other provisions as same relates to Facility Document that governs the rights or and obligations of the Administrative Agent, CP Lenders or their Conduit Support Providers (4including this Section 12.01(b)(iii)) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repaymentsamendments, modifications, supplements and waivers that apply generally to Lenders) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required that specifically relates to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto CP Conduits shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with effective without the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsCP Lender.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Agent, any other Agent, any Bank or any Lender Issuing Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Administrative Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Administrative Agent and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then Company to any Bank hereunder or under such Bank’s Notes, or (y) except as provided in effect without Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i), Section 4.03(b)(ii) and Section 10.06(c) hereof, increasing the consent amount, or extending the stated expiration or termination date, of such Lender any Bank’s Revolving Credit Commitment hereunder, or (it being understood that waivers z) changing this Section 10.01, Section 10.06 or modifications of conditions precedent, covenants, Events of Default Section 10.07 hereof or Unmatured Events of Default shall not constitute an increase the definitions of the Commitment terms “Allocable Share”, “Additional Commitment”, “Applicable Facility Fee Percentage”, “Applicable Margin”, “Event of any LenderDefault”, “Proportional Share”, “Required Banks”, “Revolving Credit Commitment”, “Total Commitment” and that an increase in “Unmatured Event of Default”, or changing the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent designation of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect “Required Banks” as the Banks entitled to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to direct the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, on behalf of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses each Bank; provided further that (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of no such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Issuing Bank hereunder, (y) increasing the standard of care or performance required on the part of any Agent or Issuing Bank hereunder, or (Bz) terminate such non-consenting Lender’s Revolving Commitment reducing or eliminating the indemnities or immunities to which any Agent or Issuing Bank is entitled hereunder (including, without limitation, any amendment or modification of this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Issuing Bank affected thereby, as the case may be and repay all outstanding Loans of such Lender which gave rise (ii) notwithstanding anything to the need to obtain such Lender’s consent, contrary in accordance with this Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing10.01, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans 3.03(c). Any waiver of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseprovision of this Agreement, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable consent to any period after departure by the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or waiver of or to any provision of this Agreement or any Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of the Majority Lenders and, in the case of an amendment, supplement, modification or termination (other change is than in writing signed by accordance with the Borrower and express provisions of this Agreement) the Required LendersBorrower; provided PROVIDED, HOWEVER, that no such the consent of all of the Lenders shall be required to effect any amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in as the case may be (any of the following clause (iforegoing, a "MODIFICATION"), which has the effect of
(i) extend reducing the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)aggregate principal amount of, or extend the stated maturity of interest rate on, any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided Notes or any reimbursement due in the Security Documents) connection with a Drawing or release releasing any Subsidiary Guarantor (other than as a result of a transaction permitted by SECTION 6.5 or an Asset Disposition made in accordance with the terms of this Agreement) or the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Administrative Agent for its own account shall require only the consent of Administrative Agent;
(xii) a Guarantor that is not a Material Subsidiary extending the stated final maturity of any of the Revolving Commitments or (y) the Revolving Notes or any reimbursement due in connection with a transaction permitted Drawing or the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments or the Notes or the Letters of Credit (other than by Section 8.3way of (a) Modification of any provision for, or having the effect of requiring, any mandatory prepayment of any portion of any Loan, or (b) Modification or waiver of any Event of Default (other than an Event of Default described in SECTION 7.1(a)(i) or any Bankruptcy Event of Default, or Unmatured Bankruptcy Event of Default), ; or
(iii) amendchanging this proviso or the first sentence of SECTION 9.9(a), modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood thatthe term "MAJORITY LENDERS", with or the definition of the terms "REVOLVING COMMITMENT" or "COMMITMENT PERCENTAGE"; PROVIDED, HOWEVER, that the consent of the Required Lenders Administrative Agent shall be required to effect any Modification that has the effect of (x) increasing the duties or obligations of the Lenders providing Additional Term Loans in Administrative Agent, (y) increasing the case standard of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans care or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included performance required on the date hereof) part of the Administrative Agent, or (vz) consent reducing or eliminating the indemnities, exculpations or immunities to which the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementAdministrative Agent is entitled; providedPROVIDED, furtherFURTHER, that no such amendment, modification, supplement, waiver, discharge, termination or other change Modification shall (1) increase the Commitments Revolving Commitment of any Lender over the amount thereof then in effect - 82 - without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender); PROVIDED, (2) without FURTHER, HOWEVER, that any Modification which has the effect of reducing the aggregate principal amount of, or interest rate on, any of the Competitive Loans shall only require the consent of the applicable Facing Agent, amend, modify Competitive Lender making such Competitive Loan. Any Modification of or waive to any provision of Section 2.9 this Agreement shall be effective only in the specific instance and for the specific purpose for which made or alter such Facing Agent’s rights given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without demand on the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent Borrower or any other provisions as same relates Person in any case shall entitle the Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses SECTIONS 9.1(a)(i) THROUGH (i) through (viii), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause CLAUSES (A) or OR (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 SECTION 2.21 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, (i) reallocate such Lender's Commitment Percentage of the L/C Outstandings in accordance with Section 4.1(bSECTION 2.4(d) as if a new Letter of Credit in such amount were issued for the account of the Borrower, and 4.3; provided that(ii) if such reallocation results in the aggregate Exposure Amount exceeding the Aggregate Revolving Commitments, unless the Revolving Commitment terminated secure such excess amount by cash or cash equivalents delivered to and Loans repaid pursuant pledged to the preceding clause (B) are immediately replaced Administrative Agent in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect a manner satisfactory to the proposed action) thereto shall be required; provided, further, that in any event Administrative Agent concurrently with the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise effectiveness of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In additiontermination, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the which time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement SCHEDULE 1.1 shall be deemed amended without further action by any Lender modified to reflect, as applicable, the new Lenders and the terms of reflect such Additional Term Loanchanged amounts.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), that:
(i) extend any Fundamental Amendment shall also require the final scheduled maturity written consent of any Loan or Note all Lenders; and
(ii) no such amendment (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Dateany Conforming Changes), modification, supplement or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1Agent, (iv) reduce the percentage specified in Document Custodian or the definition of Required Lenders (it being understood that, with Collateral Administrator hereunder without the prior written consent of the Required Lenders (such Agent, Document Custodian or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansCollateral Administrator, as the case may be, are included on the date hereof.
(c) or (v) consent Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Borrower consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of of:
(i) each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i)thereby, (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document (provided that only the consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (y) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder),
(ii) each Lender, release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security DocumentsCollateral Documents or in this Agreement),
(iii) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)each Lender, (iii) amend, modify or waive any provision of this Section 12.110.01 (except for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 or 2.15 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof), (iv) reduce the any percentage specified in the definition of Required Lenders, or, subject to clause (y), any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, or (it being understood thaty) each Lender that has a Commitment and/or Loans outstanding under the applicable Facility, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans reduce any percentage specified in the case of an amendment pursuant to Section 2.1(a)(ii))definition, the definition as applicable, of “Required Term Lenders”, “Required Revolving Lenders, “Required U.S. Revolving Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the “Required Global Revolving Loans or Term LoansLenders”.
(iv) each Lender, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; and provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default Defaults or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ;
(2B) without the consent of the applicable Facing Agenteach L/C Issuer that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.03 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit;
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI IX as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ; or
(5E) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionreductions), as between among the various Facilities, without the consent of the Required Term Lenders, the Required U.S. Revolving Lenders and the Required Global Lenders, as applicable and to the extent that their respective Facilities pursuant to Section 4.5(a) (although are being allocated a lesser prepayment, repayment or commitment reduction; provided that the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst among the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (ii) any of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, (y) the principal amount of the Loans or L/C Borrowings of any Defaulting Lender may not be reduced or forgiven, (z) the rate of interest for any Defaulting Lender may not be reduced (except as expressly provided in clause (a)(i) above) in a way that would affect a Defaulting Lender more adversely than the other affected Lenders, in each case, without the consent of such Defaulting Lender.
(b) If, in connection with any proposed changeamendment, modification, supplement, waiver, discharge discharge, termination or termination to other change of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a10.01(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”) (or, at the option of the Borrower Borrowers if the respective Non-Consenting Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective nonNon-consenting Consenting Lender which gave rise to the need to obtain such Non-Consenting Lender’s individual consent) with one or more Replacement replacement Lenders pursuant to Section 3.7 10.13 so long as at the time of such replacement, each such Replacement replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate change. Promptly following any such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B)replacement hereunder, the specific consent of Administrative Agent shall effect the Required Lenders (determined before giving effect to vote on the proposed action) thereto shall be required; providedamendment, furthermodification, that in any event the Borrower shall not have the right to replace a Lendersupplement, terminate its Revolving Commitment waiver, discharge, termination or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)other change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by the Administrative Agent to be delivered pursuant to either (i) Section 2.1(a)(ii) 2.14 in connection with an Additional increase in the Revolving Credit Facility or (ii) Section 2.15 in connection with an increase in the Term LoanLoans, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loanincrease.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent, the Collateral Administrator and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(c) Notwithstanding anything to the contrary herein, in connection with the increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (ivor providing a new Individual Lender Maximum Funding Amount) reduce shall be required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts.
(d) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (OFS Capital Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in 158 #47923322 writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of of:
(i) each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i)thereby, (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document (provided that only the consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (y) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder),
(ii) each Lender, release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security DocumentsCollateral Documents or in this Agreement),
(iii) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)each Lender, (iii) amend, modify or waive any provision of this Section 12.110.01 (except for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 or 2.15 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof), (iv) reduce the any percentage specified in the definition of Required Lenders, or, subject to clause (y), any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, or (it being understood thaty) each Lender that has a Commitment and/or Loans outstanding under the applicable Facility, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans reduce any percentage specified in the case of an amendment pursuant to Section 2.1(a)(ii))definition, the definition as applicable, of “Required Term Lenders”, “Required Revolving Lenders, “Required U.S. Revolving Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the “Required Global Revolving Loans or Term LoansLenders”.
(iv) each Lender, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; and provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall: 159 #47923322
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default Defaults or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ;
(2B) without the consent of the applicable Facing Agenteach L/C Issuer that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.03 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit;
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI IX as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ; or
(5E) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionreductions), as between among the various Facilities, without the consent of the Required Term Lenders, the Required U.S. Revolving Lenders and the Required Global Lenders, as applicable and to the extent that their respective Facilities pursuant to Section 4.5(a) (although are being allocated a lesser prepayment, repayment or commitment reduction; provided that the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst among the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (ii) any of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders)., except that (x) the Commitment of any Defaulting Lender may not be increased or extended, (y) the principal amount of the Loans or L/C Borrowings of any Defaulting Lender may not be reduced or forgiven, (z) the rate of interest for any Defaulting Lender may not be reduced (except as expressly provided in clause (a)(i) above) in a way that would affect a Defaulting Lender more adversely than the other affected Lenders, in each case, without the consent of such Defaulting Lender. 160 #47923322
(b) If, in connection with any proposed changeamendment, modification, supplement, waiver, discharge discharge, termination or termination to other change of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a10.01(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”) (or, at the option of the Borrower Borrowers if the respective Non-Consenting Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective nonNon-consenting Consenting Lender which gave rise to the need to obtain such Non-Consenting Lender’s individual consent) with one or more Replacement replacement Lenders pursuant to Section 3.7 10.13 so long as at the time of such replacement, each such Replacement replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate change. Promptly following any such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B)replacement hereunder, the specific consent of Administrative Agent shall effect the Required Lenders (determined before giving effect to vote on the proposed action) thereto shall be required; providedamendment, furthermodification, that in any event the Borrower shall not have the right to replace a Lendersupplement, terminate its Revolving Commitment waiver, discharge, termination or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)other change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by the Administrative Agent to be delivered pursuant to either (i) Section 2.1(a)(ii) 2.14 in connection with an Additional increase in the Revolving Credit Facility or (ii) Section 2.15 in connection with an increase in the Term LoanLoans, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loanincrease.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Administrative Agent and the Required Lenders; , provided that that:
(i) subject to clause (iii) below, any Fundamental Amendment shall require the written consent of each Lender;
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive any provision of this Section 12.1otherwise affect the rights, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood thatduties, with the consent immunities or liabilities of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect Administrative Agent without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the prior written consent of the Administrative Agent; and
(iii) the parties acknowledge and agree that increases in (A) the Class A Facility Amount (x) may be allocated at the Administrative Agent’s sole discretion not on a pro-rata basis among the Class A Lenders and (y) shall be agreed to by the Borrower, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent and the relevant Class A Lenders providing such increased Class A Facility Amount or any other provisions as same relates new Class A Lender joining this Agreement (subject to the rights or obligations requirements of Section 13.02) and (B) the Class B Facility Amount (x) may be allocated at the Administrative Agent’s sole discretion not on a pro-rata basis among the Class B Lenders and (y) shall be agreed to by the Borrower, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Class B Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except increased Class B Facility Amount or any new Class B Lender joining this Agreement (subject to the extent necessary requirements of Section 13.02). Any such increases in the Facility Amount will be set forth in amendments to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action executed solely by any Lender to reflectthe parties listed in clause (iii)(A)(y) and clause (iii)(B)(y) above, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (BILL Holdings, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Services Provider in any case shall entitle the Borrower or the Services Provider to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Services Provider, the Administrative Agent and the Required Majority Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplementsupplement or waiver shall amend, waiver, discharge, termination modify or other change shall, otherwise affect the rights or duties of any Agent hereunder without the prior written consent of each Lender such Agent.
(other than a Defaulting Lenderc) with Obligations directly affected thereby in Notwithstanding anything to the case of the following clause (i)contrary herein, (i) extend in connection with the final scheduled maturity increase of the Individual Lender Maximum Funding Amounts hereunder, only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be required for any Loan or Note (including, without limitation, by amending or modifying the proviso contained amendment that effects such increase in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, Individual Lender Maximum Funding Amounts and (ii) release all or substantially all of the Collateral (except as expressly provided in Administrative Agent and the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction Borrower shall be permitted by Section 8.3), (iii) amend, modify or waive to amend any provision of this Section 12.1the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (iv) reduce and any amendment, waiver or consent which by its terms requires the percentage specified in the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Individual Lender Maximum Funding Amount of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blue Owl Credit Income Corp.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no a. No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of of:
i. each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i)thereby, (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofthereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document (provided that only the consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (y) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder),
ii. each Lender, (ii) release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Collateral Documents or release any Guarantor (other than in this Agreement),
iii. (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)each Lender, (iii) amend, modify or waive any provision of this Section 12.110.01 (except for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof), (iv) reduce the any percentage specified in the definition of Required Lenders, or, subject to clause (y), any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, or (it being understood thaty) each Lender that has a Commitment and/or Loans outstanding under the applicable Facility, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans reduce any percentage specified in the case of an amendment pursuant to Section 2.1(a)(ii))definition, the definition as applicable, of “Required Term A-1 Lenders”, “Required Term A-2 Lenders”, “Required Revolving Lenders, “Required U.S. Revolving Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the “Required Global Revolving Loans or Term LoansLenders”,
iv. each Lender, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.,
Appears in 1 contract
Sources: Credit Agreement (Greif, Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein or in any other Loan Document are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither NeitherSubject to clauses (b) and (c) below and except as otherwise provided by the terms of this Agreement and the other Loan Documents, neither this Agreement or any other Loan Document nor any terms hereof or thereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is (i) in the case of this Agreement, pursuant to an agreement or agreements in writing signed entered into by Company and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the Borrower terms of such other Loan Documents), pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Collateral Agent or the UK Security Trustee, as applicable and to the extent such agent or trustee is a party thereto, and each LoanCredit Party that is party thereto, with the consent of the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations that would be directly and adversely affected thereby in the case of the following clause (i), thereby:
(i) extend the final scheduled maturity of any Loan or Note (includingof such Lender, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit issued under any Facility beyond the Revolver Termination DateMaturity Date of such Facility (it being understood that only Lenders under such Facility would be directly and adversely affected by such extension), or reduce the rate or extend the time of payment of interest or fees due to such Lender (in each case, except for (x) waivers of Default Rate interestinterest and except for, (y) or fees thereonamendments, modifications, changes, or waivers of Article IX or defined terms used in any financial ratio or other calculations in this Agreement that result in a decrease in the applicable interest rates and fees or (z) amendments entered into pursuant to Section 3.6(b)(ii)), reduce or forgive the principal amount thereofof any Loan of such Lender or extend the scheduled time of payment of any such principal, interest or fees due (it being understood that the waiver of any mandatory prepayment shall not constitute a postponement of any date scheduled for the payment of principal, interest or fees) to such Lender or reduce the amount of any other amounts payable to such Lender hereunder or under any other Loan Document or extend the expiration date of any Commitment of such Lender,
(ii) release all or substantially all of the Guarantors, representing all or substantially all of the value of the Guarantee Obligations or all or substantially all of the Collateral (except as expressly provided herein or in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1 (except for technical amendments, (iv) reduce modifications, supplements or other changes with respect to additional facilities, replacement loans or commitments, or extensions of the percentage specified in maturity date, or the definition designation or removal of Required Lenders (it being understood Other Subsidiary Borrowers, pursuant to Sections 2.9, 2.12, 2.13 or, 2.14 or 2.15 that, with except as otherwise not restricted under such Sections, afford the consent protections to such additional extensions of credit of the Required Lenders (or type provided to the Lenders providing Additional Term applicable Loans of such Lender on the Closing DateSecond Amendment Effective Date or, in the case of an amendment pursuant Other Subsidiary Borrowers, add or remove provisions related to Section 2.1(a)(ii))the jurisdictions in which such Persons are organized as agreed by the Administrative Agent and the Company) or reduce any percentage specified in, or otherwise amend, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans”, as the case may be, are included on the date hereof) or or
(viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; Agreement (except as providedassignments or transfers described in Section 2.15 or Section 8.3, or as otherwise expressly providedpermitted in any Loan Document), provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers amendments, waivers, supplements or, modifications of, or modifications changes to, the definition of “Available Multicurrency Revolver Sublimit”, “Available USD Revolver Sublimit”, “Multicurrency Revolver Sublimit”, “USD Revolver Sublimit”, any other sublimit applicable to any Facility, Schedule 1.1(c), Applicable LC Sublimit, Applicable Multicurrency LC Sublimit, Applicable USD LC Sublimit, any other sublimit applicable to Letters of Credit, Schedule 1.1(g), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such itssuch Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent or the Collateral Agent, amend, modify or waive (x) any provision of Article XI as the same applies to the rights or obligations of the Administrative Agent or the Collateral Agent or (y) any other provisions provision under this Agreement or any other Loan Document as the same relates to the rights or obligations of the Administrative Agent or the Collateral Agent, ,
(4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7D) without the consent of the Majority Lenders of each Facility which that is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), ) as between the various such Facilities pursuant to clause (i)(2) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (in each case except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Sections 2.9, 2.12, 2.13 or 2.14) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).,
(bi) Ifwithout the consent of each USD Term A Lender (other than a Defaulting Lender) with Obligations directly and adversely affected thereby, amend the definition of “USD Term A Pro Rata Share or (ii) without the consent of each EUR Term A Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of EUR Term A Pro Rata Share, in connection with any proposed change, waiver, discharge or termination to any the case of the provisions of this Agreement as contemplated by clauses (i) through and (vii)”, inclusiveexcept for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the first proviso maturity date pursuant to the third sentence of Section 12.1(a)Sections 2.9, 2.13 or 2.14,
(F) without the consent of each Multicurrency Revolving Lender under any Revolving Facility (other than a Defaulting Lender) with Obligations under such Facility directly and adversely affected thereby, amend the Required Lenders is obtained but the consent definition of one “Multicurrency Revolver Pro Rata Share (“, “Revolver Pro Rata Share” or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described “USD Revolver Pro Rata Share” (in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required case except for technical amendments with respect to less than all Loansadditional facilities, to replace only the respective Loans replacement loans or commitments, or extensions of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders maturity date pursuant to Section 3.7 so long as at the time of such replacementSections 2.9, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination 2.12 or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto2.14), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.,
Appears in 1 contract
Sources: Credit Agreement (BALL Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Senior Agent or any Senior Lender in exercising any right, power power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Senior Agent or any Senior Lender at law or in equity or otherwise. Neither this .
(b) No modification or waiver of any provision of the Senior Loan Agreement or the Notes, nor any terms hereof may consent required under the Senior Loan Agreement or the Notes, shall be amendedeffective unless the same shall be in writing and signed by the Senior Agent and Majority Senior Lenders and the Borrower, modified, supplemented, waived, discharged, terminated or otherwise changed unless and then such amendment, modification, supplement, waiver, dischargeor consent shall be effective only in the specific instance and for the specific purpose for which given; provided, termination however, that no modification, waiver, or other change is consent shall, unless in writing and signed by the Borrower Senior Agent, all the Senior Lenders, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case Borrower do any of the following clause following: (i)a) increase any Commitment of any Senior Lender, (ib) extend the final scheduled maturity forgive or reduce any amount or rate of any Loan or Note (includingprincipal, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)interest, or extend fees payable under the stated maturity of any Letter of Credit beyond the Revolver Termination DateSenior Loan Documents, or reduce the rate postpone or extend the any time of for payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (iic) release any Guaranty or all or substantially all of the Collateral collateral securing the Indebtedness (except as expressly provided in otherwise permitted or required herein), or (d) change the percentage of Senior Lenders required to take any action under the Senior Loan Agreement, the Notes, or the Security Documents) or release , including any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision amendment of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders ("Majority Senior Lenders" or the Lenders providing Additional Term Loans in the case of an amendment pursuant to this Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, 9.3. No modification, supplement, waiver, dischargeor consent shall, termination or other change shall (1) increase unless in writing and signed by the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Senior Agent or any other provisions as same relates to affect the rights or obligations of the Administrative Agent, (4) without Senior Agent under the consent of the Administrative Agent, amend, Senior Loan Documents. The Senior Agent shall not modify or waive or grant any provisions relating to the rights or obligations of the Administrative Agent consent under the any other Senior Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more Document of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required action would be prohibited under this Section 8.3 with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders Loan Agreement or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)Notes.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i)), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by it being understood that amending the definitions of Scheduled Term A Repayments (other than the Term A Loan Maturity Date) or modifying Scheduled Term B Repayments (other than the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), ) or amending the mandatory prepayment provisions or financial covenants shall not constitute an extension of the final scheduled maturity of any Loan or Note) or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in this Agreement or in the Security Document as in effect on the Closing Date) under all the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such (including, without limitation, any new or additional revolving loans or term loans are Facility) may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Term Loans and Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Holdings or Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of Administrative Agent or the Administrative Collateral Agent, amend, modify or waive any provisions relating to the rights or obligations of Administrative Agent or the Administrative Collateral Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a), clause (i) of the second sentence of Section 4.5(a) and the second sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
, (b6) Ifwithout the consent of each Term A Lender, in connection with any proposed changeamend the definition of Term A Pro Rata Share, waiverwithout the consent of each Term B Lender, discharge or termination to any amend the definition of the provisions Term B Pro Rata Share and without the consent of this Agreement as contemplated by clauses each Revolving Lender amend the definition of Revolver Pro Rata Share, or (i7) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), without the consent of the Required Supermajority Lenders is obtained of the Term A Facility, amend the definition of Scheduled Term A Repayments or the definition of Supermajority Lenders (but only if the Term A Lenders are directly affected thereby), without the consent of one the Supermajority Lenders of the Term B Facility, amend the definition of Scheduled Term B Repayments or more the definition of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Supermajority Lenders (or, at the option of the Borrower but only if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Term B Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(adirectly affected thereby).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit Agreement (TNS Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ):
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (or fees thereon except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document,
(ii) release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Collateral Documents or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3this Agreement), ,
(iii) amend, modify or waive any provision of this Section 12.1, 10.01 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 or 2.15 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders, or
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; and provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default Defaults or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ;
(2B) without the consent of the applicable Facing AgentBank of America and each other L/C Issuer that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.03 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit;
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI IX as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ;
(5E) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionreductions), as between among the various Facilities, without the consent of the Required Term Lenders, the Required U.S. Revolving Lenders and the Required Global Lenders, as applicable and to the extent that their respective Facilities pursuant to Section 4.5(a) (although are being allocated a lesser prepayment, repayment or commitment reduction; provided that the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst among the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).; or
(bF) If, in connection with change (1) any proposed change, waiver, discharge or termination to any of the provisions provision of this Agreement as contemplated by clauses Section 10.01 or the definitions of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (iother than the definitions specified in clause (2) through (vof this Section 10.01(iv)(F)), inclusive, of without the first proviso to the third sentence of Section 12.1(a), the written consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B2) belowthe definitions of “Required Term Lenders”, to either (A) replace each such non-consenting Lender “Required Revolving Lenders, “Required U.S. Revolving Lenders” or Lenders (or, at “Required Global Revolving Lenders” without the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific written consent of the Required Term Lenders, Required Revolving Lenders, Required U.S. Revolving Lenders (determined before giving effect to the proposed action) thereto shall be requiredand Required Global Revolving Lenders, respectively; and provided, further, that (i) no amendment, waiver or consent shall, unless in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (writing and the withholding of any required consent signed by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any each Swing Line Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable addition to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (ii) any of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the extent necessary contrary herein, no Defaulting Lender shall have any right to provide for covenants approve or disapprove any amendment, waiver or consent hereunder, (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other terms applicable to any period after than Defaulting Lenders), except that (x) the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans Commitment of any Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that does not provide Replacement Term Loans as having been paid in full immediately prior by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms consent of such Additional Term LoanDefaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided , PROVIDED that no such amendment, modification, supplement, supplement waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), thereby: (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)Note, or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Subsidiary Guarantor (other than (x) a Guarantor that is not a Material Subsidiary except as expressly provided in the Security Documents or (y) in connection with a transaction permitted by Section SECTION 8.3), (iii) amend, modify or waive any provision of this Section SECTION 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Lenders, the definition of “"Required Lenders” " shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, are included on the date hereofAmendment/Restatement Effective Date) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; providedPROVIDED, furtherFURTHER, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Lender, except as otherwise provided in SECTION 2.8 (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.of
Appears in 1 contract
Sources: Credit Agreement (Gencorp Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amendedeffective only in the specific instance and for the specific purpose for which given. No notice to or demand on any Borrower in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances.
(a) Except as otherwise expressly set forth in this Agreement (including Section 2.17(c) and Section 2.18), modified, supplemented, waived, discharged, terminated or otherwise changed unless such no amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrowers, the Agents and the Required Lenders; , provided that that:
(i) subject to clause (iii) below, any Fundamental Amendment shall require the written consent of each affected Lender;
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights, duties, immunities or liabilities of any provision of this Section 12.1, (iv) reduce Agent or any Approved Account Bank without the percentage specified in the definition of Required Lenders (it being understood that, with the prior written consent of the Required Lenders such Agent or Approved Account Bank (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(iias applicable)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof; and
(iii) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent this Agreement or any other provisions Facility Document (other than Hedging Agreements) so as same relates to alter the rights or obligations ratable treatment of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating Obligations arising under a Hedging Agreement relative to the rights or obligations of the Administrative Agent Obligations arising under the Facility Documents (other Loan Documents, (5than Hedging Agreements) without the consent of the Majority Lenders of each Facility, amend or the definition of Majority Lenders“Secured Party”, “Secured Hedge Counterparty”, “Hedge Counterparty”, “Hedging Agreement”, “Facility Documents” or “Obligations” (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for as such Facilityterms, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepaymentterms with similar meanings, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive are defined in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ior any other Facility Document) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of a manner adverse to any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with Secured Hedge Counterparty without the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsSecured Hedge Counterparty.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit and Security Agreement (Warner Music Group Corp.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders, provided that:
(i) any Fundamental Amendment shall also require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive any provision otherwise affect the rights or duties of this Section 12.1, (iv) reduce the percentage specified in Administrative Agent or the definition of Required Lenders (it being understood that, with Custodian hereunder without the prior written consent of the Required Lenders (Administrative Agent or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansCustodian, as the case may be, are included on the date hereof.
(c) or (v) consent Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Borrower consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Capitala Finance Corp.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement or the Second Restatement Fee Letter shall be effective unless (i) it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ), (ii) if it diminishes the rights or increases the obligations of the Collateral Manager, it is consented to by the Collateral Manager, (iii) if it diminishes the rights or increases the obligations of the Transferor with respect to any Facility Documents, it is consented to by the Transferor, (iv) if it diminishes the rights or increases the obligations of the Subordinated Noteholders hereunder, it is consented to by Subordinated Noteholders that hold at least a majority of the principal amount of the Subordinated Notes and (v) a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section 12.01(b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) hereof or (vH) consent to extend the assignment or transfer by the Borrower of Reinvestment Period; and
(ii) any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver of Article VIII, waiverArticle XI, discharge, termination or other change shall (1) increase the Commitments of any Lender over of the amount thereof then other rights or duties of either Agent (including the Collateral Agent in effect its role as Custodian) hereunder, shall require the consent of such Agent.
(c) Notwithstanding anything to the contrary set forth herein, no amendment or waiver under this Agreement or any other Facility Document that would affect a CP Conduit, a support provider of a CP Conduit or an Advance made by such CP Conduit in a manner that is disproportionate and adverse relative to other Lenders shall be effective without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)CP Conduit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit and Security Agreement (WhiteHorse Finance, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances. USActive 53861575.5 -128-
(a) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision Agent hereunder without the prior written consent of this Section 12.1such Agent.
(b) Notwithstanding anything to the contrary herein, in connection with the increase of the Commitments hereunder, only the consent of the Lender increasing its Commitment (ivor providing a new Commitment) reduce shall be required for any amendment that effects such increase in Commitments.
(c) Notwithstanding anything to the percentage specified in contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the definition consent of Required all Lenders (it being understood that, or each affected Lender may be effected with the consent of the Required applicable Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)other than Defaulting Lenders), except that (x) the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower Commitment of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination Defaulting Lender may not be increased or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement or the Fee Letter shall be effective unless (i) it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ), (ii) if it diminishes the rights or increases the obligations of the Collateral Manager, it is consented to by the Collateral Manager, (iii) if it diminishes the rights or increases the obligations of the Transferor with respect to any Facility Documents, it is consented to by the Transferor and (iv) a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section 12.01(b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) hereof or (vH) consent to extend the assignment or transfer by the Borrower of Reinvestment Period; and
(ii) any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver of Article VIII, waiverArticle XI, discharge, termination or other change shall (1) increase the Commitments of any Lender over of the amount thereof then other rights or duties of either Agent (including the Collateral Agent in effect its role as Custodian) hereunder, shall require the consent of such Agent.
(c) Notwithstanding anything to the contrary set forth herein, no amendment or waiver under this Agreement or any other Facility Document that would affect a CP Conduit, a support provider of a CP Conduit or an Advance made by such CP Conduit in a manner that is disproportionate and adverse relative to other Lenders shall be effective without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)CP Conduit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit and Security Agreement (WhiteHorse Finance, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no 12.1.1. No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (ia)(i), (i) ),
12.1.1.1. extend the final scheduled maturity of any Loan Loan, Commitment or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, (ii) ,
12.1.1.2. release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) ,
12.1.1.3. amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders or amend, modify or waive any other provision of any Loan Document (other than the Receivables Intercreditor Agreements and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of Lenders (or Lenders of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in each case, for technical amendments with respect to additional revolving facilities, replacement loans or term loans commitments, extensions of maturity date or additional extensions of credit pursuant to this Agreement so long Sections 2.9, 2.13, 2.14 and 2.15 which, except as not otherwise restricted under such Sections, afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or (v) Incremental Amendment No. 3 and Fifth Amendment Effective Date), BUSINESS.31606820.2
12.1.1.4. consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement,
12.1.1.5. amend or modify the provisions of Section 4.5(a), 10.5 or 12.6 in a manner that would by its terms alter the pro rata sharing of payments required thereby, except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15, or
12.1.1.6. amend or modify the definition of “Pro Rata Share”; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of “Multicurrency Revolving Sublimit”, Schedule 1.1(b), “Applicable LC Sublimit”, Schedule 1.1(g), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Administrative Agent and each Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Facing Agent with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent,
(4D) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)., or
(F) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment, except for technical amendments with respect to additional BUSINESS.31606820.2 facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and any Administrative Agent if (a) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
12.1.2. If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (E) and (F) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change change.
12.1.3. In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b) and 1.1(d) and any Receivables Intercreditor Agreement may be amended as follows:
12.1.3.1. Schedules 1.1(b) and (d) will be amended to add Non-U.S. Subsidiaries of Crown International Holdings as additional Subsidiary Borrowers upon (A) execution and delivery by European Borrower, any such Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c) (or such other form as mutually agreed by Crown Holdings and the Administrative Agent), providing for a Multicurrency Revolving Sublimit acceptable to U.K. Administrative Agent, (B) terminate delivery to Administrative Agents of (1) to the extent not previously delivered, the Additional Security Documents required pursuant to Section 7.14, (2) an opinion of counsel which covers matters reasonably satisfactory to Administrative Agent and (3) to the extent not previously delivered, all documentation and other information required under Section 5.1(f)(ii).
12.1.3.2. Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery by European Borrower of a written request providing for such non-consenting Lender’s Revolving Commitment amendment and repay (B) repayment in full of all outstanding Loans and other Obligations of such Lender which gave rise to Subsidiary Borrower.
12.1.3.3. Any Receivables Intercreditor Agreement may be amended in writing by the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless parties thereto without the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect Lenders.
12.1.4. Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to the proposed action) thereto be delivered pursuant to Section 2.9, 2.13, 2.14 or 2.15, in connection with any Additional Facility, Replacement Term Loans, Replacement Term Commitments, BUSINESS.31606820.2 Replacement Revolving Loans, Replacement Revolving Commitments, and/or any New Maturity Date, as applicable, this Agreement shall be required; provideddeemed amended without further action by any Lender to reflect, furtheras applicable, that in any event new Lenders and technical and conforming amendments to reflect the Borrower shall not have the right to replace a Lender, terminate terms of such Additional Facility.
12.1.5. A Revolving Lender may allocate any proportion of its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of Revolving Credit Exposure with respect to any required waiver, amendment, modification, consent by such Lender) contemplated by the second proviso or any other action pursuant to the third sentence of this Section 12.1(a)12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(c) 12.1.6. In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Crown Holdings, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(d) 12.1.7. Notwithstanding the foregoing, upon with respect to amendments under Section 12.1(a) requiring the execution and delivery approval of all documentation required by Administrative Agent of the Lenders adversely affected thereby, if all such Lenders other than one or more Defaulting Lenders approve such amendment, the failure of such Defaulting Lenders to approve such amendment shall not prevent such amendment from becoming effective with respect to such Lenders approving such amendment (it being understood that such amendment will not be delivered pursuant effective with respect to Section 2.1(a)(iisuch Defaulting Lenders that do not approve such amendment).
12.1.8. Notwithstanding the foregoing, amendments and waivers of Article IX (or any of financial definitions included in (and for purposes of) Article IX) will require only the consent of the Majority Lenders under the Revolving Facilities, the Term Loan A Facility and the Term Euro Facility and no other consents or approvals from any Lender shall be required.
12.1.9. Notwithstanding anything to the contrary in any Loan Document, in connection with an Additional Term Loanany determination as to whether the requisite Lenders have (A) consented (or not consented) to any waiver, amendment or modification of any provision of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to this Agreement or any Loan Document or (C) directed or required the Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to, or under, this Agreement or any other Loan Document, any Lender (other than an Excluded Lender) that, as a result of its interest (or its and its Covered Affiliates’ collective interests) in any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to bona fide market making activities), has a net short position with respect to any of the Loans or Commitments hereunder or with respect to any other tranche, class or series of Indebtedness for borrowed money incurred or issued by any Borrower or any of their Subsidiaries or Crown Holdings at such time of BUSINESS.31606820.2 determination (including commitments with respect to any revolving credit facility) (each such item of Indebtedness, including the Loan and Commitments, “Specified Indebtedness” and each such Lender, a “Net Short Lender”) shall have no right to vote with respect to any waiver, amendment or modification of this Agreement or any other Loan Documents and shall be deemed amended to have voted its interest as a Lender without further action discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Net Short Lenders (including in any plan of reorganization). In connection with any waiver, amendment or modification of this Agreement or the other Loan Documents, each Lender (other than any Excluded Lender) will be deemed to reflect, as applicable, the new Lenders have represented to Crown Holdings and the terms Administrative Agent that it does not constitute a Net Short Lender, in each case, unless such Lender shall have notified Crown Holdings and the Administrative Agent prior to the requested response date with respect to such waiver, amendment or modification that it constitutes a Net Short Lender (it being understood and agreed that Crown Holdings and the Administrative Agent shall be entitled to rely on each such representation and deemed representation).
12.1.10. For purposes of such Additional Term Loan.the preceding clause:
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent, Canadian Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent, Canadian Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company, European Holdco and the Required Lenders; , provided that that, no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ):
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Multicurrency Revolver Termination Date), or reduce the rate or extend the time of payment of interest (or fees thereon except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.9 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Multicurrency Revolver Sublimit, Schedule 1.1(c), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable DB and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, Agent or Canadian Administrative Agent amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent or Canadian Administrative Agent, ,
(4D) without the consent of the Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders,
(G) without the consent of the Majority Lenders of the Term Facilities affected thereby, amend the definition of Term Pro Rata Share;
(H) without the consent of the Supermajority Lenders of the Facilities affected thereby, amend the definition of Supermajority Lenders;
(I) without the consent of the Majority Lenders of the Multicurrency Revolving Facility, amend the definition of Multicurrency Revolver Pro Rata Share; without the consent of the Majority Lenders of the Canadian Revolving Facility, amend the definition of Canadian Revolver Pro Rata Share,
(J) without the consent of the Majority Lenders of the Multicurrency Revolving Facility, amend the definition of Multicurrency Revolver Sublimits or, except as provided in Section 12.1(b), Schedule 1.1(b); or
(K) without the consent of the Supermajority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso In addition to the third sentence of amendments effected pursuant to the foregoing Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent theretoSchedules 1.1(b), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.1.1
Appears in 1 contract
Sources: Credit Agreement (Ball Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Loan Parties party thereto and the Required Requisite Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than than, subject to clause (h) below, a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, ,
(ii) release the Company as a Guarantor or release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Documents or release any Guarantor (other than (x) during a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3Collateral Release Period), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders “Requisite Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Collateral Documents, with which are governed by Section 12.17), specifying the consent number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case each case, for technical amendments with respect to additional extensions of an amendment credit pursuant to Section 2.1(a)(ii)), 2.1 and 2.9 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the Closing Date,
(iv) amend or modify the definition of “Required LendersPro Rata Share” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans any component thereof,
(v) change Section 12.8(e) in a manner that further restricts assignments thereunder, or
(vi) amend or term loans are on substantially modify the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofprovisions of Section 4.5(a) or (vb) consent to or 10.6 in a manner that would by its terms alter the assignment or transfer by the Borrower pro rata sharing of any of its rights and obligations under this Agreementpayments required thereby; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Multicurrency Revolving Sublimit, conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Facing AgentAdministrative Agent and each Issuing Lender, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Issuing Lender with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents,
(E) amend, modify, terminate or waive any provision of Section 2.1(d) or any other provision of this Agreement directly affecting the Domestic Overdraft Account or the Domestic Overdraft Amount (5including any provision relating to the repayment of the Domestic Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in the Domestic Overdraft Amount) without the consent of Administrative Agent,
(F) amend, modify, terminate or waive any provision of this Agreement directly affecting an Offshore Overdraft Account or an Offshore Overdraft Amount (including any provision relating to the repayment of such Offshore Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in such Offshore Overdraft Amount) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, applicable Offshore Overdraft Provider,
(6G) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Requisite Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Requisite Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).,
(H) without the consent of the Requisite Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment, or
(I) without the consent of each Term Loan A Lender amend, modify, terminate or waive any provision of Section 5.4:
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (G) through (H) of the second proviso to such sentence, the consent of the Required Requisite Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedule 1.1(c) may be amended as follows:
(i) to add Wholly-Owned Subsidiaries of the Company as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution by the Company, any such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be, and the Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for an Additional Domestic Subsidiary Borrower Sublimit or Additional Foreign Subsidiary Borrower Sublimit, as the case may be, acceptable to the Administrative Agent, (B) delivery to the Administrative Agent of (1) to the extent not previously delivered, the pledge and security agreements required pursuant to Section 7.9(c), (2) an opinion of counsel which covers such matters related to such agreements as the Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to the Administrative Agent, and (3) such other documents with respect thereto as the Administrative Agent shall reasonably request (including, without limitation, USA Patriot Act and “know your customer” related documentation); or
(ii) to remove any Subsidiary as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution and delivery by the Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.9 in connection with an Additional Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, any new Lenders and technical and conforming amendments to reflect the terms of such Additional Facility and any documentation to evidence any Additional Incremental Rights.
(e) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Loan Parties, the Requisite Lenders and Administrative Agent (and, if their rights or obligations are affected thereby, each other Agent and each Issuing Lender) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(f) A Revolving Lender may allocate any proportion of its Revolving Credit Commitment or Revolving Credit Exposure with respect to any waiver, amendment, modification, consent or any other action pursuant to this Section 12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Company, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(dh) Notwithstanding the foregoing, upon with respect to amendments under Section 12.1(a) requiring the execution and delivery approval of all documentation required by of the Lenders under the Revolving Facility adversely affected thereby, if all such Lenders other than one or more Defaulting Lenders approve such amendment, the failure of such Defaulting Lenders to approve such amendment shall not prevent such amendment from becoming effective with respect to such Lenders approving such amendment (it being understood that such amendment will not be effective with respect to such Defaulting Lenders that do not approve such amendment).
(i) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Company and the Borrowers to make any changes to this Agreement or any other Loan Document deemed in the best interest of the Lenders, in consultation with counsel, in connection with the joinder or addition of any Borrower or Guarantor that was not a Loan Party on the Closing Date, including in connection with the creation or perfection of a security interest in any Collateral located in a jurisdiction under which Collateral was not secured or perfected in connection with the Closing Date under the Offshore Collateral Documents, upon delivery to the Administrative Agent of (1) to be delivered the extent not previously delivered, the pledge and security agreements required pursuant to Section 2.1(a)(ii7.9(c), (2) an opinion of counsel which covers such matters related to such agreements as the Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to the Administrative Agent, and (3) such other documents with respect thereto as the Administrative Agent shall reasonably request.
(j) Notwithstanding anything to the contrary contained in connection with this Section 12.1, if the Administrative Agent and Company shall have jointly identified an Additional Term Loanobvious error or any error, this Agreement defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and Company shall be deemed amended permitted to amend such provision and such amendment shall become effective without any further action by or consent of any Lender other party to reflect, as applicable, the new Lenders and the terms of such Additional Term Loanany Loan Document.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (ia)(i), ),
(i) extend the final scheduled maturity of any Loan Loan, Commitment or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders or amend, modify or waive any other provision of any Loan Document (other than the Receivables Intercreditor Agreement and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of Lenders (or Lenders of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in each case, for technical amendments with respect to additional revolving facilities, replacement loans or term loans commitments, extensions of maturity date or additional extensions of credit pursuant to this Agreement so long Sections 2.9, 2.13, 2.14 and 2.15 which, except as not otherwise restricted under such Sections, afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or Effective Date),
(viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement,
(v) amend or modify the provisions of Section 4.5(a) or 10.5 in a manner that would by its terms alter the pro rata sharing of payments required thereby, except for technical amendments with respect to additional facilities, replacement loans or commitments, or extensions of the maturity date pursuant to Section 2.9, 2.13, 2.14 or 2.15, or
(vi) amend or modify the definition of “Pro Rata Share”; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of “Multicurrency Revolving Sublimit”, Schedule 1.1(b), “Applicable LC Sublimit”, Schedule 1.1(g), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.,
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No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; provided , PROVIDED, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall:
(i) without the consent of Lenders holding at least 80% of the principal amount of the affected Term Loans reduce the amount of or postpone the date of any Scheduled Term Loan Principal Payments;
(ii) without the consent of Lenders holding at least 66-2/3% of all Loans:
(A) amend, modify or waive any provision of SECTION 4.2(b), SECTION 4.2(c) (including for purposes hereof the definition of Excess Cash Flow set forth in SECTION 1.1), SECTION 4.2(e) or SECTION 4.2(g), or
(B) prior to the Minimum Term B Prepayment, amend, modify or waive any provision of SECTION 8.1 or SECTION 8.2;
(iii) without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (iA), ):
(iA) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof), 99
(iiB) other than as expressly permitted under SECTION 12.17(b)(i)(A)-(C), effect any release all of assets with a book value aggregating 5% or substantially all more of the Collateral total consolidated tangible assets of Borrower (except measured as expressly provided in of the Security Documentsend of the most recently completed Fiscal Quarter for which financial statements have been delivered to Administrative Agent) or release any Guarantor during the term of this Agreement,
(other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iiiC) amend, modify or waive any provision of this Section 12.1, SECTION 12.1(a),
(ivD) reduce the percentage specified in the definition of Required Lenders or Supermajority Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Lenders, the definition of “"Required Lenders” " or "Supermajority Lenders" shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or Agreement),
(vE) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided,
(F) amend the definition of Pro Rata Share, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall or
(1G) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, SECTION 4.2(j);
(3iv) without the consent of the Administrative Agent, amend, modify or waive any provision of Article ARTICLE XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4v) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ;
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7vi) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment prepayment or commitment reductionrepayment, alter the required application of any prepayments or repayments (or commitment reduction)repayments, as between the various Facilities pursuant to Section the first sentence of SECTION 4.3(a) and the second sentence of SECTION 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered);
(vii) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders;
(viii) without the consent of Supermajority Lenders:
(A) amend, modify or waive SECTION 8.3 so as to permit any Acquisition involving a total Investment in an amount in excess of $20 million, 100
(B) amend, modify or waive any provision of SECTION 8.4, 8.8, 8.16(b) or 8.16(c),
(C) amend, modify or waive any provision of SECTION 8.1, 12.17(b), the Security Documents or the Intercreditor Agreement so as to expressly agree that any Liens shall be senior to the Liens securing the Obligations, other than Liens securing the Priority Loans, or
(D) amend, modify or waive SECTION 8.2 to permit any Receivables Facility Attributed Indebtedness; or
(ix) without the consent of Lenders holding at least 80% of all Loans, amend, modify or waive SECTION 8.16(a).
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (vix), inclusive, of the first proviso to the third sentence of Section SECTION 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, below to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 SECTION 3.6 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b) and 4.3SECTION 12.1(a); provided PROVIDED that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be requiredspecifically consent thereto; providedPROVIDED, furtherFURTHER, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment Lender or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(athis SECTION 12.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company and the Required Lenders; provided that (x) if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of an immaterial nature, in each case in any provision of any Loan Document, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof, and (y) no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of of:
(i) each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i)thereby, (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateMaturity Date with respect to the Revolving Credit Facility), or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document (provided that only the consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (y) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder),
(ii) each Lender, release all or substantially all of the value of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security DocumentsCollateral Documents or in this Agreement),
(iii) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)each Lender, (iii) amend, modify or waive any provision of this Section 12.110.01 (except for technical amendments with respect to additional extensions of credit pursuant to Section 2.14 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof), (iv) reduce the any percentage specified in the definition of Required Lenders, or, subject to clause (y), any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, or (it being understood thaty) each Lender that has a Commitment and/or Loans outstanding under the applicable Facility, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans reduce any percentage specified in the case of an amendment pursuant to Section 2.1(a)(ii))definition, the definition as applicable, of “Required Term A-1 Lenders”, “Required Term A-2 Lenders”, “Required Revolving Lenders, “Required U.S. Revolving Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the “Required Global Revolving Loans or Term LoansLenders”,
(iv) each Lender, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement,
(v) (w) if such Facility is the Term A-1 Facility, the Required Term A-1 Lenders, (x) if such Facility is the Term A-2 Facility, the Required Term A-2 Lenders, (y) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, and (z) if such Facility is the Global Revolving Credit Facility, the Required Global Revolving Lenders, change Section 2.13 or Section 8.02, in either case, in any manner that materially and adversely affects the Lenders under any such Facility,
(vi) each Lender directly affected thereby, amend Section 1.08 or the definition of “Alternative Currency”; and provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default Defaults or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ;
(2B) without the consent of the applicable Facing Agenteach L/C Issuer that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.03 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit;
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI IX as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ;
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ; or
(5E) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reductionreductions), as between among the various Facilities, without the consent of the Required Term A-1 Lenders, Required Term A-2 Lenders, the Required U.S. Revolving Lenders and the Required Global Revolving Lenders, as applicable and to the extent that their respective Facilities pursuant to Section 4.5(a) (although are being allocated a lesser prepayment, repayment or commitment reduction; provided that the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst among the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (ii) any of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, (y) the principal amount of the Loans or L/C Borrowings of any Defaulting Lender may not be reduced or forgiven, (z) the rate of interest for any Defaulting Lender may not be reduced (except as expressly provided in clause (a)(i) above) in a way that would affect a Defaulting Lender more adversely than the other affected Lenders, in each case, without the consent of such Defaulting Lender.
(b) If, in connection with any proposed changeamendment, modification, supplement, waiver, discharge discharge, termination or termination to other change of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a10.01(a), the consent of the Required Lenders (or, in the case of such proposed amendment, modification, supplement, waiver, discharge, termination or other change that requires approval of all Lenders or all affected Lenders in a Facility, the Required Term A-1 Lenders, the Required Term A-2 Lenders, the Required U.S. Revolving Lenders or the Required Global Revolving Lenders, as applicable) is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”) (or, at the option of the Borrower Borrowers if the respective Non-Consenting Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective nonNon-consenting Consenting Lender which gave rise to the need to obtain such Non-Consenting Lender’s individual consent) with one or more Replacement replacement Lenders pursuant to Section 3.7 10.13 so long as at the time of such replacement, each such Replacement replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate change. Promptly following any such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B)replacement hereunder, the specific consent of Administrative Agent shall effect the Required Lenders (determined before giving effect to vote on the proposed action) thereto shall be required; providedamendment, furthermodification, that in any event the Borrower shall not have the right to replace a Lendersupplement, terminate its Revolving Commitment waiver, discharge, termination or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)other change.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, (i) upon the execution and delivery of all documentation required by the Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) 2.14 in connection with an Additional Term Loanany Incremental Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loanincrease, (ii) this Agreement may be amended by the Company, the applicable Applicant Borrower, the Administrative Agent and each Lender that is to provide Commitments and/or Loans in favor of such Applicant Borrower to add such provisions as are deemed necessary, in the sole discretion of the Administrative Agent, to facilitate the addition of any Applicant Borrower designated pursuant to Section 2.15 and (iii) this Agreement may be amended by the Company and the Administrative Agent to add such provisions as are deemed necessary, in the reasonable discretion of the Administrative Agent, to facilitate the addition of any new Alternative Currency designated pursuant to Section 1.08.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder or with respect to the Advances shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver of this Agreement shall be effective unless it is in writing signed by the Borrower and the Required Lenders (or the Facility Agent on behalf of the Required Lenders; ) and a Rating Confirmation is obtained, provided that that:
(i) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change waiver shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case unless by an instrument signed by all of the following clause Lenders (ior the Facility Agent on behalf of all of the Lenders), (iA) increase or extend the term of the Commitments or change the Final Maturity Date, (B) extend the final scheduled maturity date fixed for the payment of principal of or interest on any Advance or any fee hereunder, (C) reduce the amount of any Loan or Note such payment of principal, (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or D) reduce the rate at which interest is payable thereon or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofany fee is payable hereunder, (iiE) release all or substantially all of the Collateral (Collateral, except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction dispositions permitted by hereunder, (F) alter the terms of Section 8.39.01 or this Section 12.01(b), (iiiG) amend, modify in any manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) hereof or (vH) consent to extend the assignment or transfer by the Borrower of Reinvestment Period; and
(ii) any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver of Article VIII, waiverArticle XI, discharge, termination or other change shall (1) increase the Commitments of any Lender over of the amount thereof then other rights or duties of either Agent (including the Collateral Agent in effect without its role as Custodian) hereunder, shall require the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent, any other Agent or any Lender Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Agent, any other Agent, or any Lender Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Administrative Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Administrative Agent and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then Company to any Bank hereunder (including Fees) or under such Bank’s Notes, or (y) except as provided in effect without Section 2.08(e)(ii), Section 2.12(c)(i), Section 2.13(i), Section 3.06 and Section 10.06(c) hereof, increasing the consent amount, or extending the stated expiration or termination date, of such Lender any Bank’s Term Loan Commitment hereunder, or (it being understood that waivers z) changing this Section 10.01, Section 10.06 or modifications of conditions precedent, covenants, Events of Default Section 10.07 hereof or Unmatured Events of Default shall not constitute an increase the definitions of the terms “2-Year Tranche Commitment”, “364-Day Tranche Commitment”, “Allocable Share”, “Applicable Commitment Fee Rate”, “Applicable Margin”, “Event of Default”, “Proportional Share”, “Required Banks”, “Term Loan Commitment”, “Total Commitment” and “Unmatured Event of Default”, changing any Lender, and other provision hereof in a manner that an increase in would alter the available portion pro rata sharing of any Commitment of any Lender shall not constitute an increase in payments required thereby or changing the Commitment of such Lender), (2) without the consent designation of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect “Required Banks” as the Banks entitled to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to direct the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, on behalf of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses each Bank; provided further that (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of no such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent hereunder, (y) increasing the standard of care or performance required on the part of any Agent hereunder, or (Bz) terminate such non-consenting Lender’s Revolving Commitment reducing or eliminating the indemnities or immunities to which any Agent is entitled hereunder (including, without limitation, any amendment or modification of this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent affected thereby, as the case may be and repay all outstanding Loans of such Lender which gave rise (ii) notwithstanding anything to the need to obtain such Lender’s consent, contrary in accordance with this Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing10.01, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.73.03(c) and provided further that no such amendment, modification, supplement, termination, waiver or consent, as the case may be, which has the effect of (bx) altering the aggregate principal amount allocation of Term Loan Commitment reductions or prepayments between Classes shall be effective unless the same shall be signed by or on behalf of the Required Banks with respect to each Class of such Replacement Term Loans Loan Commitments or (y) changing any provision hereof in a manner that would affect Banks in one Class differently than the Banks in another Class shall not exceed the aggregate principal amount of such Refinanced Term Loans be effective unless the same shall be signed by or on behalf of the Required Lenders (treating Banks with respect to the Refinanced Term Loans Class that is adversely affected. Any waiver of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseprovision of this Agreement, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable consent to any period after departure by the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Term Loan Agreement (Occidental Petroleum Corp /De/)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Loan Parties party thereto and the Required Requisite Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than than, subject to clause (h) below, a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the Commitment Period or the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, ,
(ii) release Company as a Guarantor or release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Collateral Documents or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by pursuant to Section 8.311.10(d), ),
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Requisite Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any other provision of any Loan Document (other than the Collateral Documents, which are governed by Section 2.9 12.17), specifying the number or alter such Facing Agent’s percentage of Lenders (or Lenders of any Facility) required to waive, amend or modify any rights thereunder or obligations make any determination or grant any consent thereunder (except, in each case, for technical amendments with respect to Letters additional extensions of Credit that it has issued or may be required credit pursuant to issueSection 2.1, (3) without 2.10 and 2.15 which afford the consent protections to such additional extensions of credit of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies type provided to the Administrative Agent Term Loans on the Closing Date),
(iv) amend or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, “Pro Rata Share” or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).component thereof,
(bv) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of change Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii12.8(e) in connection with an Additional Term Loan, this Agreement shall be deemed amended without a manner that further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.restricts assignments thereunder; or
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby;
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1, (iv) reduce Agent hereunder without the percentage specified in the definition of Required Lenders (it being understood that, with the prior written consent of the Required Lenders such Agent; and
(or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofiii) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplementsupplement or waiver shall amend, waivermodify or otherwise affect the rights or duties of the Equityholder hereunder without the prior written consent of the Equityholder.
(c) Notwithstanding anything to the contrary herein, discharge(i) in connection with the increase of the Individual Lender Maximum Funding Amounts hereunder, termination only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or other change providing a new Individual Lender Maximum Funding Amount) shall be required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts and (1ii) increase the Commitments Administrative Agent and the Borrower shall be permitted to amend any provision of the Facility Documents (and such amendment shall become effective without any further action or consent of any other party to any Facility Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision.
(d) Notwithstanding anything to the contrary herein, no Defaulting Lender over 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 amount thereof then in effect consent of the Required Lenders, all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Individual Lender Maximum Funding Amount of any Defaulting Lender may not be increased or extended without the consent of such Lender and (it being understood that waivers y) any waiver, amendment or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without modification requiring the consent of the applicable Facing Agent, amend, modify all Lenders or waive each affected Lender that by its terms affects any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without Defaulting Lender more adversely than other affected Lenders shall require the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)Defaulting Lender.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender Bank in exercising any right, power or remedy hereunder or under any Note or Letter of Credit shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender Bank at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination waiver of or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by any Borrower or any Subsidiary of any Borrower therefrom, shall be effective unless the percentage specified same shall be in the definition of Required Lenders (it being understood that, with the consent writing and signed by or on behalf of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this AgreementBanks; provided, furtherhowever, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of:
(i) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable (including without limitation principal, interest and fees) by any Borrower to any Bank hereunder or under any Loan Obligation or constituting unreimbursed Letter of Credit payments; provided, however, that any modification that has the effect of reducing the aggregate amount thereof then in effect without of any fees payable to the Agent and/or the LC Bank for their own account shall require only consent of such Lender the Agent and/or the LC Bank, as applicable,;
(it being understood that waivers ii) changing this Section 9.1 or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase the definitions of the terms "Required Banks" and "Pro Rata Share";
(iii) changing the Loan Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.Bank hereunder;
Appears in 1 contract
Sources: Loan Agreement (Kmart Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by Holdings, the Borrower and the Required Lenders; , provided that no such amendment, modification, supplement, supplement waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)Note, or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Lenders, the definition of “"Required Lenders” " shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the extensions of Revolving Loans, Multicurrency Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, or (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Domestic Revolving Commitment and/or Multicurrency Revolving Commitment, as the case may be, and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b) and and/or 4.3; provided that, unless the Domestic Revolving Commitment and/or the Multicurrency Revolving Commitment, as the case may be, terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Domestic Revolving Commitment and/or the Multicurrency Revolving Commitment, as the case may be, or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Holdings, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“"Refinanced Term Loans”") with one or more replacement or modified Term Facilities hereunder (“"Replacement Term Loans”"), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Syndication Agent or the Administrative Agent or any Lender Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Syndication Agent or the Administrative Agent or any Lender Bank at law or law, in equity or otherwise. Neither this Agreement nor Each request by the Company for any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by waiver of or to any provision of this Agreement shall be directed to the Borrower Syndication Agent, and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent waiver of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by the percentage specified Company therefrom, shall be effective unless the same shall be in writing and signed by the definition of Required Lenders (it being understood that, with the consent Company and by or on behalf of the Syndication Agent and the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Banks; PROVIDED, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, furtherHOWEVER, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination as the case may be, which has the effect of (x) reducing the rate or other change shall (1) increase amount, or extending the Commitments stated maturity or due date, of any Lender over sum payable by the amount thereof then in effect without the consent of Company to any Bank hereunder or under such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such FacilityBank's Notes, or (7y) without except as provided in Section 2.09(e)(ii), Section 2.13(c)(i), Section 2.14(i), Section 4.03(b)(ii) and Section 10.06(c) hereof, increasing the consent amount, or extending the stated expiration or termination date, of any Bank's Revolving Credit Commitment hereunder, or (z) changing this Section 10.01, Section 10.06 or Section 10.07 hereof or the definitions of the Majority Lenders terms "Allocable Share", "Applicable Facility Fee Percentage", "Applicable Margin", "Event of each Facility which is being allocated a lesser prepaymentDefault", repayment "Proportional Share", "Reference Bank", "Reference Banks", "Required Banks", "Revolving Credit Commitment", "Total Commitment" and "Unmatured Event of Default", or commitment reduction, alter changing the required application designation of any prepayments or repayments (or commitment reduction), the "Required Banks" as between the various Facilities Banks entitled to direct the Syndication Agent pursuant to Section 4.5(a) (although 8.01 hereof shall be effective unless the Required Lenders may waive in whole same shall be signed by or in part, any on behalf of each Bank; PROVIDED FURTHER that no such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of any Agent or any Managing Agent [NYCorp;1203895.1] hereunder, or (By) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans increasing the standard of such Lender which gave rise to care or performance required on the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case part of any action pursuant Agent or any Managing Agent hereunder, or (z) reducing or eliminating the indemnities or immunities to preceding clause which any Agent or Managing Agent is entitled hereunder (B)including, the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; providedwithout limitation, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing amendment or modification of all outstanding Term Loans this Section 10.01) shall be effective unless the same shall be signed by or on behalf of the Agent or Managing Agent affected thereby. Any waiver of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”)provision of this Agreement, provided that (a) and any Lender that does not consent to any departure by the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Company from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Five Year Credit Agreement (Occidental Petroleum Corp /De/)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i)), (i) extend the final scheduled maturity of any Loan or Note (includingit being understood that amending the definitions of Scheduled Term A Repayments (other than the Term A Loan Maturity Date), without limitation, by amending or modifying Scheduled Term B Repayments (other than the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), ) or Scheduled Acquisition Repayments (other than the Revolver Termination Date) or amending the mandatory prepayment provisions or financial covenants shall not constitute an extension of the final scheduled maturity of any Loan or Note) or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date or any Rollover Letter of Credit beyond the Rollover LC Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in this Agreement or in the Security Document as in effect on the Original Closing Date) under all the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such (including, without limitation, any new or additional revolving loans or term loans are Facility) may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Term Loans and Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Holdings or Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available 141 148 portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issueCredit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of Agent or the Administrative Collateral Agent, amend, modify or waive any provisions relating to the rights or obligations of Agent or the Administrative Collateral Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a), clause (i) of the second sentence of Section 4.5(a) and the fourth and fifth sentences of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered), (6) without the consent of each Term A Lender, amend the definition of Term A Pro Rata Share, without the consent of each Term B Lender, amend the definition of the Term B Pro Rata Share, and without the consent of each Revolving Lender amend the definition of Revolver Pro Rata Share, (7) without the consent of the Majority Lenders of the Term A Facility, amend the definition of Majority Lenders (but only if the Term A Lenders are directly affected thereby), without the consent of the Majority Lenders of the Term B Facility, amend the definition of Majority Lenders (but only if the Term B Lenders are directly affected thereby), and without the consent of the Majority Lenders of the Revolving Facility, amend the definition of Majority Lenders (but only if the Revolving Lenders are directly affected thereby), or (8) without the consent of the Super Majority Lenders of the Term A Facility, amend the definition of Scheduled Term A Repayments or the definition of Super Majority Lenders (but only if the Term A Lenders are directly affected thereby), without the consent of the Super Majority Lenders of the Term B Facility, amend the definition of Scheduled Term B Repayments or the definition of Super Majority Lenders (but only if the Term B Lenders are directly affected thereby), and without the consent of the Super Majority Lenders of the Revolving Facility, amend the definition of Scheduled Acquisition Repayments or the definition of Super Majority Lenders (but only if the Revolving Lenders are directly affected thereby).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and Term A Commitment and repay all outstanding Loans of such Lender which 142 149 gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(b4.l(b) and and/or 4.3; provided that, unless the Revolving Commitment and Term A Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of ) the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; specifically consent thereto, provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or Term A Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second first proviso to the third sentence of this Section 12.1(a12.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may provision of this Agreement, and any consent to any departure by any party to this Agreement from the terms of any provision of this Agreement, shall be available effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.11(b) with respect to the Administrative Agent implementation of a Benchmark Replacement Rate or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amendedBenchmark Replacement Conforming Changes (as set forth therein), modified, supplemented, waived, discharged, terminated or otherwise changed unless such no amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders, provided that:
(i) any Fundamental Amendment shall require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1Agent, the Swingline Lender, the Custodian, the Collateral Administrator or the Backup Collateral Manager (ivincluding in its role as successor Collateral Manager if it shall be so appointed) reduce hereunder without the percentage specified in the definition of Required Lenders (it being understood that, with the prior ‑159‑ FILENAME written consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))such Agent, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans Swingline Lender, Custodian, Collateral Administrator or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansBackup Collateral Manager, as the case may be, are included on the date hereof) or (v) consent . Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer by the Borrower of disapprove any of its rights and obligations under this Agreement; provided, further, that no such amendment, modificationwaiver or consent hereunder, supplementexcept that the Commitment of such Lender may not be increased or extended, waiverand amounts payable to such Lender hereunder may not be permanently reduced, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall other than reductions in fees and interest in which such reduction does not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of disproportionately affect such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent Agents or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent Agents or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company, European Holdco and the Required Lenders; , provided that that, no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ):
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Multicurrency Revolver Termination Date), or reduce the rate or extend the time of payment of interest (or fees thereon except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Documents or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3this Agreement), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.9 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase or extend the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of Schedule 1.1(c), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable DB and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders or Required Lenders, or
(G) without the consent of the Majority Lenders of the Multicurrency Revolving Facility, amend the definition of Multicurrency Revolver Pro Rata Share.
(b) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedule 1.1(c) may be amended as follows:
(i) Schedule 1.1(c) will be amended to add Foreign Subsidiaries of Company as additional Subsidiary Borrowers upon (A) execution and delivery by Company, any such Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(b) and acceptable to Administrative Agent, (B) delivery to Administrative Agent of (1) to the extent not previously delivered, the pledge and guarantee agreements required pursuant to Sections 7.12 and 7.14, (2) an opinion of counsel which covers the matters set forth in Exhibit 5.1(d)(ii) with such exceptions as are reasonably satisfactory to Administrative Agent and (3) such other documents with respect thereto as Administrative Agent shall reasonably request.
(ii) Schedule 1.1(c) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery by Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Subsidiary Borrower.
(c) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the applicable Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termschange.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) 2.9 in connection with an Additional Term Loana Revolver Increase, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term LoanRevolver Increase.
Appears in 1 contract
Sources: Credit Agreement (Greif Inc)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company, European Holdco and the Required Lenders; , provided that that, no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations that would be directly affected thereby in the case of the following clause (i), thereby:
(i) extend the final scheduled maturity of any Loan or Note (includingof such Lender, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (or fees due to such Lender except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofof any Loan of such Lender or extend the time of payment of any such principal, interest or fees due to such Lender or reduce the amount of any other amounts payable to such Lender hereunder or under any other Loan Document,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided herein or in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.9 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this AgreementAgreement (except as expressly provided herein); provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Revolver Sublimit, Schedule 1.1(c), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable DB and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, Agent or Collateral Agent amend, modify or waive (x) any provision of Article XI as same applies to the rights or obligations of Administrative Agent or Collateral Agent or (y) any other provisions provision under this Agreement or any other Loan Document as same relates to the rights or obligations of the Administrative Agent or Collateral Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby amend the definition of Majority Lenders,
(G) without the consent of each Term Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Term Pro Rata Share,
(H) without the consent of the Supermajority Lenders of the Facilities affected thereby, amend the definition of Supermajority Lenders,
(I) without the consent of each Multicurrency Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Multicurrency Revolver Pro Rata Share,
(J) without the consent of each French Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of French Revolver Pro Rata Share,
(K) without the consent of the Majority Lenders of the Multicurrency Revolving Facility and the French Revolving Facility, amend the definition of Revolver Sublimits or, except as provided in Section 12.1(b), Schedule 1.1(b),
(L) without the consent of the Supermajority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility.
(b) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b), and 1.1(d) may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Foreign Subsidiaries of Company as additional Other Subsidiary Borrowers upon (A) execution and delivery by Company, any such Other Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(b), providing for a Revolver Sublimit (unless such other Subsidiary Borrower is also to be a French Borrower) acceptable to Administrative Agent, (B) delivery to Administrative Agent of (1) to the extent not previously delivered, the pledge and guarantee agreements required pursuant to Sections 7.12 and 7.14, (2) an opinion of counsel which covers such matters related to such agreements as Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to Administrative Agent and (3) such other documents with respect thereto as Administrative Agent shall reasonably request.
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as an Other Subsidiary Borrower upon (A) execution and delivery by Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Other Subsidiary Borrower.
(c) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the applicable Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termschange.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) 2.9 in connection with an Additional Term LoanFacility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term LoanFacility.
Appears in 1 contract
Sources: Credit Agreement (Ball Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Loan Parties party thereto and the Required Requisite Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender affected thereby (other than than, subject to clause (h) below, a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of interest at the Default Rate interest) or fees thereonRate), or reduce or forgive the principal amount thereof, ,
(ii) release the Company as a Guarantor or release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) Documents or release any Guarantor (other than (x) during a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3Collateral Release Period), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders “Requisite Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Collateral Documents, with which are governed by Section 12.17), specifying the consent number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case each case, for technical amendments with respect to additional extensions of an amendment credit pursuant to Section 2.1(a)(ii2.1 and 2.9 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the Closing Date)), ,
(iv) amend or modify the definition of “Required LendersPro Rata Share” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans any component thereof,
(v) change Section 12.8(e) in a manner that further restricts assignments thereunder,; or
(vi) amend or term loans are on substantially modify the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereofprovisions of Section 4.5(a) or (vb) consent to or 10.6 in a manner that would by its terms alter the assignment or transfer by the Borrower pro rata sharing of any of its rights and obligations under this Agreementpayments required thereby; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Multicurrency Revolving Sublimit, conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Facing AgentAdministrative Agent and each Issuing Lender, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Issuing Lender with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents,
(E) amend, modify, terminate or waive any provision of Section 2.1(d) or any other provision of this Agreement directly affecting the Domestic Overdraft Account or the Domestic Overdraft Amount (5including any provision relating to the repayment of the Domestic Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in the Domestic Overdraft Amount) without the consent of Administrative Agent,
(F) amend, modify, terminate or waive any provision of this Agreement directly affecting an Offshore Overdraft Account or an Offshore Overdraft Amount (including any provision relating to the repayment of such Offshore Overdraft Amount with the proceeds of Multicurrency Revolving Loans or relating to the obligations of Lenders to purchase participations in such Offshore Overdraft Amount) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, applicable Offshore Overdraft Provider,
(6G) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Requisite Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Requisite Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(H) without the consent of the Requisite Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment, or
(I) without the consent of each Term Loan A Lender amend, modify, terminate or waive any provision of Section 5.4:5.4, or
(J) (I) amend or otherwise modify Article IX (or for the purposes of determining compliance with Article IX, any defined term used therein), (II) waive or consent to any Default or Event of Default resulting from a breach of Article IX or (III) alter the rights or remedies of the Requisite Financial Covenant Lenders arising pursuant to Article X as a result of a breach of Article IX, in each case, without the written consent of the Requisite Financial Covenant Lenders; provided, however, that the amendments, modifications, waivers and consents described in this clause (J) shall not require the consent of any Lenders other than the Requisite Financial Covenant Lenders.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (G) through (H) of the second proviso to such sentence, the consent of the Required Requisite Lenders (or Requisite Financial Covenant Lenders, as the case may be) is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-non- consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. , waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedule 1.1(c) may be amended as follows:
(i) to add Wholly-Owned Subsidiaries of the Company as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution by the Company, any such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be, and the Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for an Additional Domestic Subsidiary Borrower Sublimit or Additional Foreign Subsidiary Borrower Sublimit, as the case may be, acceptable to the Administrative Agent, (B) delivery to the Administrative Agent of (1) to the extent not previously delivered, the pledge and security agreements required pursuant to Section 7.9(c), (2) an opinion of counsel which covers such matters related to such agreements as the Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to the Administrative Agent, and (3) such other documents with respect thereto as the Administrative Agent shall reasonably request (including, without limitation, USA Patriot Act and “know your customer” related documentation); or
(ii) to remove any Subsidiary as an Additional Domestic Subsidiary Borrower or an Additional Foreign Subsidiary Borrower, as the case may be, upon (A) execution and delivery by the Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Additional Domestic Subsidiary Borrower or Additional Foreign Subsidiary Borrower, as the case may be.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.9 in connection with an Additional Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, any new Lenders and technical and conforming amendments to reflect the terms of such Additional Facility and any documentation to evidence any Additional Incremental Rights.
(e) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Loan Parties, the Requisite Lenders and Administrative Agent (and, if their rights or obligations are affected thereby, each other Agent and each Issuing Lender) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(f) A Revolving Lender may allocate any proportion of its Revolving Credit Commitment or Revolving Credit Exposure with respect to any waiver, amendment, modification, consent or any other action pursuant to this Section 12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Company, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(dh) Notwithstanding the foregoing, upon with respect to amendments under Section 12.1(a) requiring the execution and delivery approval of all documentation required by of the Lenders under the Revolving Facility adversely affected thereby, if all such Lenders other than one or more Defaulting Lenders approve such amendment, the failure of such Defaulting Lenders to approve such amendment shall not prevent such amendment from becoming effective with respect to such Lenders approving such amendment (it being understood that such amendment will not be effective with respect to such Defaulting Lenders that do not approve such amendment).
(i) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Company and the Borrowers to make any changes to this Agreement or any other Loan Document deemed in the best interest of the Lenders, in consultation with counsel, in connection with the joinder or addition of any Borrower or Guarantor that was not a Loan Party on the Closing Date, including in connection with the creation or perfection of a security interest in any Collateral located in a jurisdiction under which Collateral was not secured or perfected in connection with the Closing Date under the Offshore Collateral Documents, upon delivery to the Administrative Agent of (1) to be delivered the extent not previously delivered, the pledge and security agreements required pursuant to Section 2.1(a)(ii7.9(c), (2) an opinion of counsel which covers such matters related to such agreements as the Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to the Administrative Agent, and (3) such other documents with respect thereto as the Administrative Agent shall reasonably request.
(j) Notwithstanding anything to the contrary contained in connection with this Section 12.1, if the Administrative Agent and Company shall have jointly identified an Additional Term Loanobvious error or any error, this Agreement defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and Company shall be deemed amended permitted to amend such provision and such amendment shall become effective without any further action by or consent of any Lender other party to reflect, as applicable, the new Lenders and the terms of such Additional Term Loanany Loan Document.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination waiver of or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive to any provision of this Section 12.1Agreement, (iv) reduce nor consent to any departure by any Borrower or any of its Subsidiaries therefrom, shall be effective unless the percentage specified same shall be in the definition of Required Lenders (it being understood that, with the consent writing and signed by or on behalf of the Required Lenders (or and the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))Borrowers; PROVIDED, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, furtherHOWEVER, that no such amendment, modification, supplement, waivertermination, dischargewaiver or consent, termination or other change as the case may be, shall (1A) reduce the rate of interest or extend the final maturity of the Revolving Commitments (but excluding any change relating to waiver of the applicability of the Default Rate or any mandatory or voluntary repayment of any principal sum payable by any Borrower to any Lender hereunder or any mandatory commitment reduction of the Revolving Commitment related to any mandatory prepayment other than the mandatory commitment reduction at the end of the Commitment Period), or the date for payment of any fees or interest on any Loan, or Letter of Credit or any date for reimbursement of any Letter of Credit Payment or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Loan or Letter of Credit Payment, or amend the definition of "Borrowing Base" to increase the Commitments of any Lender over advance rate percentages specified therein to a level higher than that existing on the amount thereof then in effect date hereof, without the prior written consent of such each holder of a Note or Lender affected thereby, (it being understood that waivers or modifications B) without the prior written consent of conditions precedentthe affected Lender, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in extend any Commitment, decrease the available portion principal amount of any Commitment Loan or fees owed to any Lender hereunder or change the Revolving Pro Rata Share of any Lender shall not constitute an Lender, or, without the prior written consent of all Lenders, increase in the Commitment amount of such Lender)the Commitments, (2C) change this SECTION 13.1 or the definitions of the terms "Required Lenders" or "Revolving Pro Rata Share," without the prior written consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such FacilityLender affected thereby, or (7D) without the consent other than as expressly permitted in SECTION 13.16, effect any release of any material portion of the Majority Lenders Collateral during the term of each Facility which is being allocated a lesser prepayment, repayment this Agreement or commitment reduction, alter the required application release of any prepayments Borrower or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment Subsidiary Guarantor (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction a Subsidiary Guarantor which is still required to be made is not altered).
(ba Material Subsidiary) If, in connection with any proposed change, waiver, discharge from all or termination to substantially all its obligations under the Subsidiary Guarantee Agreement or amend any of the provisions Loan Documents to change the first lien nature of the Collateral without the prior written consent of all Lenders hereunder (other than as a result of a transaction permitted by SECTION 8.3 or an Asset Disposition made in accordance with the terms of this Agreement (including any amendments thereto permitted hereby) or as contemplated by clauses (i) through (v), inclusive, of the first proviso otherwise permitted pursuant to the third sentence of Section 12.1(aSubsidiary Guarantee Agreement); and PROVIDED, the consent of the Required Lenders is obtained but the consent of one or more of FURTHER, that no such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, dischargetermination, termination waiver or other change consent, as the case may be, which has the effect of (x) increasing the duties or obligations of Administrative Agent hereunder, (y) 125 increasing the standard of care or performance required on the part of Administrative Agent hereunder, or (Bz) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans reducing or eliminating the fees, indemnities or immunities to which Administrative Agent is entitled hereunder (including, without limitation, any amendment or modification of such Lender which gave rise to the need to obtain such Lender’s consentthis SECTION 13.1(a)), in accordance with Section 4.1(b) and 4.3; provided that, shall be effective unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto same shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment signed by or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent on behalf of Administrative Agent; and PROVIDED FURTHER, Borrower and that no such amendment, modification, supplement, termination, waiver or consent, as the Lenders providing case may be, affecting the relevant Replacement Term Loans (as defined below) to permit the refinancing rights or modification of all outstanding Term Loans duties of any Facility (“Refinanced Term Loans”) with one Facing Bank under this Agreement or more replacement any other Loan Document, shall be effective unless the same shall be signed by such Facing Bank. Any amendment, modification or modified Term Facilities hereunder (“Replacement Term Loans”)supplement of or to any provision of this Agreement, provided that (a) any Lender that does not waiver of any provision of this Agreement, and any consent to any departure by the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and Borrowers from the terms of such Additional Term Loanany provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by any Loan Document, no notice to or demand on a Borrower in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances.
Appears in 1 contract
Sources: Revolving Credit Agreement (Huntsman Polymers Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available provision of this Agreement, and any consent to the Administrative Agent or any Lender at law or in equity or otherwise. Neither departure by any party to this Agreement nor from the terms of any terms hereof may provision of this Agreement, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Seller, the Administrative Agent and the Required Majority Lenders; provided that no such any amendment, modification, supplement, waiver, discharge, termination waiver or other change shall, without supplement of or to this Agreement that would (i) increase or extend the consent term of each Lender the Commitments (other than a Defaulting Lender) with Obligations directly affected thereby an increase in the case Commitment of a particular Lender or addition of a new Lender hereunder agreed to by the following clause (i), (irelevant Lender(s) extend pursuant to the final scheduled maturity terms of any Loan this Agreement) or Note (including, without limitation, by amending or modifying change the proviso contained in the definition of Revolver Termination Date or Term B Loan Final Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all extend the date fixed for the payment of principal of or substantially all of the Collateral (except as expressly provided in the Security Documents) interest on any Advance or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3)fee hereunder, (iii) amend, modify or waive reduce the amount of any provision such payment of this Section 12.1principal, (iv) reduce the rate at which interest (other than Interest paid at the Post-Default Rate) is payable thereon or any fee is payable hereunder, (v) release any material portion of the Collateral, except in connection with dispositions permitted hereunder, (vi) alter the terms of Section 9.01 or Section 11.01(b), or (vii) modify in any other manner the number or percentage specified in of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof (including the definition of Required Lenders (it being understood that, with "Majority Lenders") shall require the written consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required all Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding Notwithstanding anything to the foregoing, contrary contained in this Agreement may be amended with or any other Facility Document, no Defaulting Lender shall have any right to vote, approve or disapprove of any amendment, waiver or consent under this Agreement or any other Facility Document (and any amendment, waiver or consent which by its terms requires the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.all
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Compass, Inc.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders Lenders; or
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Revolving Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Revolver Sublimit, Schedule 1.1(b) conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Revolving Commitment of any Lender, and that an increase in the available portion of any Revolving Commitment of any Lender shall not constitute an increase in the Revolving Commitment of such Lender), ,
(2B) without the consent of the applicable Administrative Agent and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s the rights or obligations of any Facing Agent with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).,
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (A) through (D) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Company shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Company if the respective Lender’s 's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s 's individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In additionaddition to the amendments effected pursuant to the foregoing Section 12.1(a), notwithstanding the foregoingSchedules 1.1(b), this Agreement and 1.1(d) may be amended with the written consent of Administrative Agent, Borrower as follows:
(i) Schedules 1.1(b) and the Lenders providing the relevant Replacement Term Loans (as defined belowd) will be amended to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full add Foreign Subsidiaries of the principal amount of Company as additional Subsidiary Borrowers upon (A) execution and interest accrued on each Refinanced Term Loan made delivery by it or is replaced as provided in Section 3.7the Company, (b) the aggregate principal amount of any such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless Subsidiary Borrower, the Required Lenders and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for a Revolver Sublimit acceptable to Administrative Agent and the Required Lenders, (treating the Refinanced Term Loans B) delivery to Administrative Agent of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior (1) to the amendment) shall approve such increaseextent not previously delivered, the Additional Security Documents required pursuant to Section 7.11, (c2) an opinion of counsel which covers the Applicable Eurocurrency Margin for Eurocurrency Loans matters set forth in Exhibit 5.1(d) with such exceptions as are reasonably satisfactory to Administrative Agent and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans (3) such other documents with respect thereto as Administrative Agent shall not be higher than reasonably request (including, without limitation, promissory notes from such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders Subsidiary Borrower).
(treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendmentii) shall approve such increase, Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery to the Weighted Average Life to Maturity Administrative Agent by the Company of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of a written request providing for such amendment and (eB) repayment in full of all other terms applicable to such Replacement Term outstanding Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms Obligations of such Additional Term LoanSubsidiary Borrower.
Appears in 1 contract
Sources: Credit Agreement (Huntsman Advanced Materials (UK) LTD)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may provision of this Agreement, and any consent to any departure by any party to this Agreement from the terms of any provision of this Agreement, shall be available effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.11(b) with respect to the Administrative Agent implementation of a Benchmark Replacement Rate or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amendedBenchmark Conforming Changes (as set forth therein), modified, supplemented, waived, discharged, terminated or otherwise changed unless such no amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Collateral Manager, the Administrative Agent and the Required Lenders, provided that:
(i) any Fundamental Amendment shall require the written consent of all Lenders; provided that and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1Agent, the Swingline Lender, the Custodian, the Collateral Administrator or the Backup Collateral Manager (ivincluding in its role as successor Collateral Manager if it shall be so appointed) reduce hereunder without the percentage specified in the definition of Required Lenders (it being understood that, with the prior written consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii))such Agent, the definition of “Required Lenders” shall include lenders with respect to additional revolving loans Swingline Lender, Custodian, Collateral Administrator or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term LoansBackup Collateral Manager, as the case may be, are included on the date hereof) or (v) consent . Notwithstanding anything to the assignment contrary herein, no Defaulting Lender shall have any right to approve or transfer by the Borrower of disapprove any of its rights and obligations under this Agreement; provided, further, that no such amendment, modificationwaiver or consent hereunder, supplementexcept that the Commitment of such Lender may not be increased or extended, waiverand amounts payable to such Lender hereunder may not be permanently reduced, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall other than reductions in fees and interest in which such reduction does not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of disproportionately affect such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in Secured Party exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive Any waiver of any remedies that may be available to the Administrative Agent provision of this Agreement or any Lender at law or in equity or otherwise. Neither other Facility Document, and any consent to any departure by any party to this Agreement nor or any other Facility Document from the terms hereof may of any provision of this Agreement or such other Facility Document, shall be amended, modified, supplemented, waived, discharged, terminated effective only in the specific instance and for the specific purpose for which given. No notice to or otherwise changed unless such demand on the Borrower or the Servicer in any case shall entitle the Borrower or the Servicer to any other or further notice or demand in similar or other circumstances.
(b) No amendment, modification, supplement, waiver, discharge, termination supplement or other change is in writing waiver of this Agreement shall be effective unless signed by the Borrower Borrower, the Servicer, the Administrative Agent, the Collateral Administrator and the Required Lenders; provided that that:
(i) any Fundamental Amendment shall require the written consent of all Lenders affected thereby; and
(ii) no such amendment, modification, supplement, waiver, discharge, termination supplement or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) waiver shall amend, modify or waive otherwise affect the rights or duties of any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (Agent or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect Collateral Administrator hereunder without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)Collateral Administrator.
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent Notwithstanding anything to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7contrary herein, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loanthe increase of the Individual Lender Maximum Funding Amounts hereunder, this Agreement only the consent of the Lender increasing its Individual Lender Maximum Funding Amount (or providing a new Individual Lender Maximum Funding Amount) shall be deemed amended without further action by required for any amendment that effects such increase in Individual Lender Maximum Funding Amounts. USActive 58387584.158387591.4 -137- ARTICLE VII SCHEDULE 1 INITIAL INDIVIDUAL LENDER MAXIMUM FUNDING AMOUNTS AND PERCENTAGES BNP Paribas An amount equal to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.Facility Amount $130,000,000 100%86.66666% USActive 58399186.158399186.2 Sch. 1-1
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Sources: Revolving Credit and Security Agreement (OFS Capital Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative any Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower respective Credit Parties party thereto and the Required Lenders; , provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ),
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon (except for waivers payment of Default Rate interest) or fees thereonInterest), or reduce or forgive the principal amount thereof, ,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.112.1(a), (iv) or reduce the percentage specified in the definition of Required Lenders Lenders, “Required Domestic Lenders”, “Required European Lenders” or amend, modify or waive any other provision of any Loan Document (it being understood thatother than the Intercreditor Agreements, with the consent Sharing Agreement and the Security Documents, which are governed by Section 12.17), specifying the number or percentage of the Required Lenders (or the Lenders providing Additional Term Loans of any Facility) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder (except, in the case of an amendment pursuant to Section 2.1(a)(ii))each case, the definition of “Required Lenders” shall include lenders for technical amendments with respect to additional revolving loans or term loans extensions of credit pursuant to this Agreement so long as Section 2.9 which afford the protections to such additional revolving loans or term loans are on substantially extensions of credit of the same basis as type provided to the Revolving Term Loans or Term Loans, as the case may be, are included on the date hereof) or , or
(viv) consent to the assignment or transfer by the Borrower any Credit Party of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Euro Revolving Sublimit, Schedule 1.1(b) conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable Administrative Agent and each Facing Agent, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s the rights or obligations of any Facing Agent with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent,
(4D) without the consent of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent, U.K. Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Schedule d Term Repayments for such Facility in a manner that decreases or delays any Scheduled Term Repayment; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharger or termination) and any Administrative Agent if (a) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (b) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
(b) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a)) or (E) through (F) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a)change.
(c) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b), and 1.1(d) may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Foreign Subsidiaries of European Borrower as additional Subsidiary Borrowers upon (A) execution and delivery by European Borrower, any such Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(c), providing for a Euro Revolving Sublimit acceptable to U.K. Administrative Agent, (B) delivery to Administrative Agents of (1) to the extent not previously delivered, the Additional Security Documents required pursuant to Sections 7.14 and (2) an opinion of counsel which covers matters reasonably satisfactory to Administrative Agent.
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as a Subsidiary Borrower upon (A) execution and delivery by European Borrower of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Subsidiary Borrower.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.9 in connection with an Additional Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, any new Lenders and technical and conforming amendments to reflect the terms of such Additional Facility.
(e) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Credit Parties, the Required Lenders and Administrative Agent (and, if their rights or obligations are affected thereby, each other Agent and each Facing Agent) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(f) A Revolving Lender may allocate any proportion of its Revolving Credit Commitment or Revolving Credit Exposure with respect to any waiver, amendment, modification, consent or any other action pursuant to this Section 12.1 or any other Loan Document in order to vote separate portions thereof differently with respect thereto.
(g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower Crown Holdings, Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility outstanding under one or more Term Facilities (“Refinanced Term Loans”) with one or more a replacement or modified Term Facilities term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”), ; provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increaseLoans, (cb) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior weighted average life to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life weighted average life to Maturity maturity of the such Refinanced Term Loans at the time of such amendment refinancing and (ec) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than than, those applicable to such Refinanced Term Loans Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termsrefinancing.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein in this Agreement are cumulative and are not exclusive of any remedies that may be available to the Administrative any Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such No amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed waiver of or to any provision of this Agreement or any Revolving Note, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be consented to by or on behalf of Borrower and the Required Majority Lenders; provided PROVIDED, HOWEVER, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in shall be required to effect any amendment, modification, supplement, termination, waiver or consent, as the case may be (any of the following clause (iforegoing, a "Modification"), which has the effect of
(i) extend reducing the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date)aggregate principal amount of, or extend the stated maturity of interest rate on, any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) Revolving Notes or release releasing any Subsidiary Guarantor (other than (x) as a Guarantor that is not a Material Subsidiary or (y) in connection with result of a transaction permitted by Section 8.3SECTION 8.4 or an Asset Disposition made in accordance with the terms of this Agreement) or reducing the aggregate amount of any fees provided for in this Agreement, except that any Modification that has the effect of reducing the aggregate amount of any fees payable to Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final maturity of any of the Revolving Commitments or the Revolving Notes or the date of any portion of any payment of principal of, or interest or fees in respect of, any of the Revolving Commitments or the Revolving Notes (other than by way of (a) Modification of any provision for, or having the effect of requiring, any mandatory prepayment of any portion of any Loan, or (b) Modification or waiver of any Event of Default (other than an Event of Default described in SECTION 9.1(a)(i), 9.1(g) or 9.1(h)) or Unmatured Event of Default); or
(iii) amendchanging this proviso or the first sentence of SECTION 11.9(a), modify or waive any provision of this Section 12.1, (iv) reduce reducing the percentage specified in the definition of Required Lenders the term "Majority Lenders", or (except in connection with a permitted assignment by any Lender under this Agreement) the definition of the terms "Revolving Commitment" or "Commitment Percentage" (it being understood with respect to all of the foregoing that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case Majority Lenders, additional extensions of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans credit pursuant to this Agreement so long as such additional revolving loans or term loans are may be included in the determination of the Majority Lenders on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, Commitments are included in such determination on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement); providedPROVIDED, furtherFURTHER, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender Agent shall be required to effect any Modification that has the effect of (it being understood that waivers x) increasing the duties or modifications obligations of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender)Agent, (2y) without increasing the consent standard of care or performance required on the applicable Facing part of Agent, amendor (z) reducing or eliminating the indemnities, modify exculpations or waive immunities to which Agent is entitled. Any Modification of or to any provision of Section 2.9 this Agreement shall be effective only in the specific instance and for the specific purpose for which made or alter such Facing Agent’s rights given and only if in writing. Except where notice is specifically required by this Agreement, no notice to or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent demand on Borrower or any other provisions as same relates Person in any case shall entitle Borrower or such other Person to the rights any other or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify further notice or waive any provisions relating to the rights demand in similar or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered)circumstances.
(b) If, in connection with any proposed amendment, change, supplement, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viii), inclusive, of the first proviso to the third sentence of Section 12.1(aSECTION (a), the consent of the Required Majority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section SECTION 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s 's Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s 's consent, in accordance with Section 4.1(bSECTION 4.4(b) and 4.3and/or 4.2(c); provided PROVIDED that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), ) the specific consent of the Required Majority Lenders (determined before giving effect to the proposed action) thereto shall be required; providedspecifically consent thereto, furtherPROVIDED, FURTHER, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) contemplated by the second first proviso to the third sentence of Section 12.1(athis SECTION 11.1(b).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company, European Holdco and the Required Lenders; , provided that that, no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations that would be directly affected thereby in the case of the following clause (i), thereby:
(i) extend the final scheduled maturity of any Loan or Note (includingof such Lender, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination DateDate (it being understood that only Multicurrency Revolving Lenders would be directly affected by such extension), or reduce the rate or extend the time of payment of interest (or fees due to such Lender except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereofof any Loan of such Lender or extend the scheduled time of payment of any such principal, interest or fees due to such Lender or reduce the amount of any other amounts payable to such Lender hereunder or under any other Loan Document or extend the expiration date of any Commitment of such Lender,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided herein or in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.9 which afford the protections to such additional extensions of credit of the type provided to the Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this AgreementAgreement (except as expressly provided herein); provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Revolver Sublimit, Schedule 1.1(c), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable DB and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, Agent or Collateral Agent amend, modify or waive (x) any provision of Article XI as same applies to the rights or obligations of Administrative Agent or Collateral Agent or (y) any other provisions provision under this Agreement or any other Loan Document as same relates to the rights or obligations of the Administrative Agent or Collateral Agent, ,
(4D) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (except for technical amendments with respect to Additional Facilities pursuant to Section 2.9) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby amend the definition of Majority Lenders,
(G) without the consent of each Term Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Term Pro Rata Share (except for technical amendments with respect to Additional Facilities pursuant to Section 2.9),
(H) without the consent of the Supermajority Lenders of the Facilities affected thereby, amend the definition of Supermajority Lenders,
(I) without the consent of each Multicurrency Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Multicurrency Revolver Pro Rata Share (except for technical amendments with respect to Additional Facilities pursuant to Section 2.9),
(J) without the consent of each French Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of French Revolver Pro Rata Share,
(K) without the consent of the Majority Lenders of the Multicurrency Revolving Facility and the French Revolving Facility, amend the definition of Revolver Sublimits or, except as provided in Section 12.1(b), Schedule 1.1(b),
(L) without the consent of the Supermajority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility; provided, however, that any provision of this Agreement may be amended, modified, supplemented, waived, discharged terminated or otherwise changed by an agreement in writing signed by the respective Credit Parties thereto, the Required Lenders (measured after giving effect to such amendment, supplement, waiver, discharge or termination) and any Administrative Agent if (x) by the terms of such agreement all Commitments of each Lender not consenting to the actions therein shall terminate upon the effectiveness of such agreement and (y) at the time such agreement becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other Obligations owing to it or accrued for its account under this Agreement.
(b) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b), and 1.1(d) may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Foreign Subsidiaries of Company as additional Other Subsidiary Borrowers upon (A) execution and delivery by Company, any such Other Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit
12.1 (b), providing for a Revolver Sublimit (unless such other Subsidiary Borrower is also to be a French Borrower) acceptable to Administrative Agent, (B) delivery to Administrative Agent of (1) to the extent not previously delivered, the pledge and guarantee agreements required pursuant to Sections 7.12 and 7.14, (2) an opinion of counsel which covers such matters related to such agreements as Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to Administrative Agent and (3) such other documents with respect thereto as Administrative Agent shall reasonably request, including, without limitation, documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations.
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as an Other Subsidiary Borrower upon (A) execution and delivery by Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Other Subsidiary Borrower.
(c) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the applicable Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termschange.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) 2.9 in connection with an Additional Term LoanFacility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Facility.
(e) Notwithstanding anything to the contrary contained in Section 12.1, if the Administrative Agent and Company shall have jointly identified an obvious error or any error, defect or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.
(f) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, the Borrowers and the Lenders providing the relevant Replacement Term LoanLoans (as defined below) to permit the refinancing of all Term Loans outstanding under one or more Term Facilities (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (c) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of any Term Loans in effect immediately prior to such refinancing.
(g) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, the Facing Agent, the Swing Line Lender, the Borrowers and the Lenders providing the relevant Replacement Revolving Loans (as defined below) and Replacement Revolving Commitments (as defined below) to permit the refinancing of all Multicurrency Revolving Loans and/or French Revolving Loans outstanding hereunder (“Refinanced Revolving Loans”) with replacement revolving credit loans (“Replacement Revolving Loans”) and commitments (“Replacement Revolving Commitments”) hereunder which shall be Loans and Commitments hereunder; provided that (a) the aggregate principal amount of such Replacement Revolving Loans and Replacement Revolving Commitments shall not exceed the aggregate principal amount of such Refinanced Revolving Loans and Replacement Revolving Commitments, (b) the maturity date of such Replacement Revolving Loans shall not be earlier than the latest Revolver Termination Date of such Refinanced Revolving Loans and (c) all other terms applicable to such Replacement Revolving Loans and Replacement Revolving Commitments shall be substantially identical to, or less favorable to the Lenders providing such Replacement Revolving Loans and Replacement Revolving Commitments than, those applicable to such Refinanced Revolving Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest Revolver Termination Date in effect immediately prior to such refinancing.
Appears in 1 contract
Sources: Credit Agreement (Ball Corp)
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders; provided that no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby in the case of the following clause (i), (i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest (except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), (iii) amend, modify or waive any provision of this Section 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of the applicable Facing Agent, amend, modify or waive any provision of Section 2.9 or alter such Facing Agent’s rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender’s consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid 202 in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such terms.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) in connection with an Additional Term Loan, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term Loan.
Appears in 1 contract
Sources: Credit Agreement
No Waiver; Modifications in Writing. (a) Except as expressly provided in this Agreement, no No failure or delay on the part of the Administrative Agent, Canadian Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent, Canadian Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower Company, European Holdco and the Required Lenders; , provided that that, no such amendment, modification, supplement, waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations directly affected thereby in the case of the following clause (i), ):
(i) extend the final scheduled maturity of any Loan or Note (including, without limitation, by amending or modifying the proviso contained in the definition of Revolver Termination Date or Term B Loan Maturity Date), or extend the stated maturity of any Letter of Credit beyond the Multicurrency Revolver Termination Date), or reduce the rate or extend the time of payment of interest (or fees thereon except for waivers of Default Rate interest) or fees thereon, or reduce or forgive the principal amount thereof, thereof or extend the time of payment or reduce the amount of any other amounts payable hereunder or under any other Loan Document,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly provided in the Security Documents) or release any Guarantor (other than (x) a Guarantor that is not a Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3), ,
(iii) amend, modify or waive any provision of this Section 12.1, 12.1 (ivexcept for technical amendments with respect to additional extensions of credit pursuant to Section 2.9 which afford the protections to such additional extensions of credit of the type provided to the Term Loans on the date hereof) or reduce the any percentage specified in the definition of Required Lenders Lenders,
(it being understood that, with the consent of the Required Lenders (or the Lenders providing Additional Term Loans in the case of an amendment pursuant to Section 2.1(a)(ii)), the definition of “Required Lenders” shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the Revolving Loans or Term Loans, as the case may be, are included on the date hereof) or (viv) consent to the assignment or transfer by the any Borrower of any of its rights and obligations under this Agreement; provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall shall:
(1A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of the definition of Multicurrency Revolver Sublimit, Schedule 1.1(c), conditions precedent, representations, warranties, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), ,
(2B) without the consent of the applicable DB and each Facing AgentAgent that has issued an outstanding Letter of Credit, amend, modify or waive any provision of Section 2.9 2.10 or alter such Facing Agent’s its rights or obligations with respect to Letters of Credit that it has issued or may be required to issue, Credit,
(3C) without the consent of the Administrative Agent, Agent or Canadian Administrative Agent amend, modify or waive any provision of Article XI as same applies to the Administrative Agent or Canadian Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent or Canadian Administrative Agent, ,
(4D) without the consent of the Administrative Agent or Canadian Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent or Canadian Administrative Agent under the other Loan Documents, ,
(5) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (6) without the consent of the Majority Lenders of the applicable Facility, amend the Scheduled Term Repayments for such Facility, or (7E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to clause (i) of the first sentence of Section 4.5(a) and the second and third sentence of Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment (other than Scheduled Term Repayments) or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered),
(F) without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby amend the definition of Majority Lenders,
(G) without the consent of each Term Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Term Pro Rata Share;
(H) without the consent of the Supermajority Lenders of the Facilities affected thereby, amend the definition of Supermajority Lenders;
(I) without the consent of each Multicurrency Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Multicurrency Revolver Pro Rata Share; without the consent of each Canadian Revolving Lender (other than a Defaulting Lender) with Obligations directly affected thereby, amend the definition of Canadian Revolver Pro Rata Share,
(J) without the consent of the Majority Lenders of the Multicurrency Revolving Facility, amend the definition of Multicurrency Revolver Sublimits or, except as provided in Section 12.1(b), Schedule 1.1(b); or
(K) without the consent of the Supermajority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments for such Facility.
(b) In addition to the amendments effected pursuant to the foregoing Section 12.1(a), Schedules 1.1(b), and 1.1(d) may be amended as follows:
(i) Schedules 1.1(b) and (d) will be amended to add Foreign Subsidiaries of Company as additional Other Subsidiary Borrowers upon (A) execution and delivery by Company, any such Other Subsidiary Borrower and Administrative Agent of a Joinder Agreement in the form of Exhibit 12.1(b), providing for a Multicurrency Revolver Sublimit acceptable to Administrative Agent, (B) delivery to Administrative Agent of (1) to the extent not previously delivered, the pledge and guarantee agreements required pursuant to Sections 7.12 and 7.14, (2) an opinion of counsel which covers the matters set forth in Exhibit 5.1(c)(ii) with such exceptions as are reasonably satisfactory to Administrative Agent and (3) such other documents with respect thereto as Administrative Agent shall reasonably request.
(ii) Schedules 1.1(b) and (d) will be amended to remove any Subsidiary as an Other Subsidiary Borrower upon (A) execution and delivery by Company of a written request providing for such amendment and (B) repayment in full of all outstanding Loans and other Obligations of such Other Subsidiary Borrower.
(c) If, in connection with any proposed change, waiver, discharge or termination to of any of the provisions of this Agreement as contemplated by clauses (ia)(i) through (viv), inclusive, of the first proviso to the third sentence of Section 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the applicable Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, right to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower Borrowers if the respective Lender’s consent is required with respect to less than all LoansLoans and/or Commitments, to replace only the respective Loans and/or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7 3.8 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s consent, in accordance with Section 4.1(b) and 4.3; provided that, unless the Revolving Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the specific consent of the Required Lenders (determined before giving effect to the proposed action) thereto shall be required; provided, further, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).
(c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all outstanding Term Loans of any Facility (“Refinanced Term Loans”) with one or more replacement or modified Term Facilities hereunder (“Replacement Term Loans”), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the Applicable Eurocurrency Margin for Eurocurrency Loans and the Applicable Base Rate Margin for Base Rate Loans for the Replacement Term Loans shall not be higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment unless the Required Lenders (treating the Refinanced Term Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such termschange.
(d) Notwithstanding the foregoing, upon the execution and delivery of all documentation required by Administrative Agent to be delivered pursuant to Section 2.1(a)(ii) 2.9 in connection with an Additional Term LoanFacility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and the terms of such Additional Term LoanFacility.
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Sources: Credit Agreement (Ball Corp)