Waiver; Amendments. (a) Except as otherwise expressly provided in this Agreement, no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or any of the other Loan Documents (including without limitation, the Intercreditor Agreement) shall in any event be effective unless the same shall be in writing and signed by Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that: (i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under the other Loan Documents; and (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents. (b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document. (c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
Appears in 1 contract
Sources: Credit Agreement (Hooper Holmes Inc)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of :
A. increase the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Commitment of any principal Lender without the written consent of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) such Lender;
B. reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (B))
C. postpone the date fixed for any payment (excluding any mandatory prepayments) of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender directly and adversely affected thereby;
D. change Section 2.21(b) or (iic) no such amendment, modification, waiver in a manner that would alter the pro rata sharing of payments required thereby or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.28.2, or (E) reduce without the aggregate Pro Rata Shares required to effect written consent of each Lender; E. change any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of this Section 9), under this Agreement 11.2 or the definition of “Required Lenders” or any other Loan Document.
(c) No delay on provision hereof specifying the part number or percentage of Agent Lenders which are required to waive, amend or modify any Lender in rights hereunder or make any determination or grant any consent hereunder, without the exercise consent of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.each Lender;
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), Lender;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted under Guarantors or limit the Collateral Documents, except as otherwise specifically provided in this Agreement liability of all or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or substantially all of the LendersGuarantors under any Guaranty, as without the case may bewritten consent of each Lender; or
(G) release all or substantially all collateral (if any) securing any of the Obligations, in accordance with without the provisions above)written consent of each Lender; provided further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9)1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders. The Lenders hereby authorize the Administrative Agent to enter into, under and the Lenders agree that this Agreement or any and the other Loan Document.
(c) No delay on the part of Agent or Documents shall be amended by, any Lender agreement implementing an increase in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, Aggregate Revolving Commitments or the exercise establishment of an Incremental Term Loan to the extent the Administrative Agent and the Borrower deem necessary in order to increase the Aggregate Revolving Commitments or establish the applicable Incremental Term Loan and to effect such other changes agreed by the Borrower and the Persons providing such Incremental Term Loan and approved by the Administrative Agent; provided, however, that any other right, power or remedy.such agreement shall not affect any change
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letters), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), Lender;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or “Required Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted under Guarantors or limit the Collateral Documents, except as otherwise specifically provided in this Agreement liability of all or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or substantially all of the Guarantors under any Guaranty, without the written consent of each Lender; or
(G) release all or substantially all collateral (if any) securing any of the Obligations, without the written consent of each Lender;
(ii) prior to the Revolving Commitments Termination Date, unless also signed by Required Revolving Lenders, as no such amendment or waiver shall, (i) waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(ii); or
(iii) unless also signed by Lenders (other than Defaulting Lenders) holding in the case may beaggregate at least a majority of the outstanding amount of the Delayed Draw Term Loan and any unfunded Delayed Draw Commitment, no such amendment or waiver shall (i) waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in accordance with the provisions abovea manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iii); provided further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9), under this Agreement 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or any other not to allow a Loan Document.
(c) No delay on the part of Agent or any Lender Party to use cash collateral in the exercise context of any right, power a bankruptcy or remedy insolvency proceeding and such determination shall operate as a waiver thereof, nor shall any single or partial exercise by any be binding on all of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyLenders.
Appears in 1 contract
Waiver; Amendments. (a) Except as otherwise expressly provided in this Agreement, no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or any of the other Loan Documents (including without limitation, the Intercreditor Agreement) shall in any event be effective unless the same shall be in writing and signed by Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of the Administrative Agent or any Lender in the exercise of any right, power or remedy shall operate of as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or the other Loan Documents shall in any event be effective unless the same shall be in writing and acknowledged by the Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, modification, waiver or consent shall (a) extend the Maturity Date or increase the Commitment of any Lender without the written consent of such Lender, (b) extend the date scheduled for payment of any principal (excluding mandatory prepayments) of or interest on the Loans or any fees payable hereunder without the written consent of each Lender directly affected thereby, (c) reduce the principal amount of any Loan, the rate of interest thereon or any fees payable hereunder, without the consent of each Lender directly affected thereby; or (d) release any party from its obligations under the Guaranty or all or any substantial part of the Collateral granted under the Collateral Documents, change the definition of Required Lenders, any provision of this Section 11(a) or reduce the aggregate percentage required to effect an amendment, modification, waiver or consent, without, in each case, the written consent of all Lenders. No provision of Section 10 or other provision of this Agreement affecting the Administrative Agent in its capacity as such shall be amended, modified or waived without the consent of the Administrative Agent.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and arc not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. “No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letters), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
Appears in 1 contract
Waiver; Amendments. (a1) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Term Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(2) Subject to Section 2.12(b)Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implantation of a Benchmark Replacement or Benchmark Conforming Changes (as set forth therein) and Section 5.17 with respect to the deemed incorporation of any additional and/or more restrictive Specified Provisions contained in the Note Documents, no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letters), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(Aa) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Term Loan Commitment of any principal Lender without the written consent of such Lender;
(except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cb) reduce the principal amount of any Loan, Term Loan or LC Disbursement or reduce the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1)thereon, or reduce any fees or other amounts payable hereunder or under hereunder, without the other Loan Documentswritten consent of each Lender directly affected thereby; and
(ii) no such amendment, modification, waiver or provided that only the consent shall, unless in writing and signed by all of the Required Lenders in addition shall be necessary to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do waive any obligation of the following: (A) release any material guaranty under Borrower to pay interest at the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided rate set forth in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.2.82.12
(c) No delay on during the part continuance of Agent or any Lender in the exercise an Event of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.Default;
Appears in 1 contract
Sources: Term Loan Agreement (Root, Inc.)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letters), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), Lender;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted under Guarantors or limit the Collateral Documents, except as otherwise specifically provided in this Agreement liability of all or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or substantially all of the LendersGuarantors under any Guaranty, as without the case may bewritten consent of each Lender; or
(G) release all or substantially all collateral (if any) securing any of the Obligations, in accordance with without the provisions above)written consent of each Lender; provided further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9)1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders. The Lenders hereby authorize the Administrative Agent to enter into, under and the Lenders agree that this Agreement or any and the other Loan Document.
(c) No delay on the part of Agent or Documents shall be amended by, any Lender agreement implementing an increase in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, Aggregate Revolving Commitments or the exercise establishment of any an Incremental Term Loan to the extent the Administrative Agent and the Borrower deem necessary in order to increase the Aggregate Revolving Commitments or establish the applicable Incremental Term Loan and to effect such other right, power or remedy.changes agreed by the Borrower and the Persons providing such Incremental Term Loan and approved by the Administrative
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement or any other Loan Document, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letter and the Engagement Letter), the Intercreditor Agreement) nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin lieu of the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no such amendment, modification, waiver or increase the Commitment of any Lender without the written consent shall, unless in writing of each Lender directly and signed by all of the Lenders directly adversely affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments thereby (provided that only the Lenders participating a waiver of Default Interest, any condition precedent set forth in Section 3.1 or 3.2, any Default or Event of Default or any mandatory prepayment shall not constitute an increase in any such increase of the Commitments shall be considered directly affected by such increaseCommitment), ;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or reimbursement obligation with respect to a LC Disbursement or reduce the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest except pursuant to Section 2.6.12.16(b)), or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (provided that a waiver of Default Interest, any Default or Event of Default, any mandatory prepayment or any change to a financial ratio or the components thereof or calculation conventions with respect thereto shall not constitute such a reduction);
(iii) postpone the date scheduled for any payment of any principal of any Loan or postpone the scheduled date for the termination of any Commitment, without the written consent of each Lender directly and adversely affected thereby (provided that a waiver or postponement, as applicable, of Default Interest, any Default or Event of Default, any mandatory prepayment, any condition precedent set forth in Section 3.1 or 3.2 or any change to a financial ratio or the components thereof or calculation conventions with respect thereto shall not constitute such a postponement, reduction, waiver or excuse);
(A) change Section 2.21(b), 2.21(c) or 8.2 in a manner that would alter the pro rata sharing of payments by the Lenders or the order or priority of payments required thereby, (B) change Section 2.8 in a manner that would alter the pro rata sharing of Commitment reductions required thereby, (C) subordinate the payment priority of the Obligations or (D) change any other amounts payable hereunder provision of this Agreement or under any of the other Loan Documents; and
Documents that addresses the matters described in (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a partyA), do (B) or (C) or permit any action which would directly or indirectly have the effect of amending any of the following: provisions described in this clause (Aiv), in each case, without the written consent of each Lender directly and adversely affected thereby;
(v) release change any material guaranty of the provisions of this subsection (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(vi) except as otherwise permitted under the Guarantee and Collateral Agreement or Loan Documents, release all or substantially all of the Collateral granted guarantors, or limit the liability of such guarantors, under any guaranty agreement guaranteeing any of the Collateral DocumentsObligations, without the written consent of each Lender; or
(vii) except as otherwise specifically provided permitted under the Loan Documents, release (or subordinate the Lien of the Administrative Agent on) all or substantially all Collateral (if any) securing any of the Obligations, without the written consent of each Lender; provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person.
(c) 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, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender).
(d) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
(e) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the other Loan DocumentsParties (i) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Credit Exposure and any Incremental Commitments and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter Section 2.21(b) or (c) or any other provision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in subsection (d), (Be)(i) change or (f) of this Section.
(f) Notwithstanding anything to the definition contrary herein, but subject to the rights of Required Lenderseach Lender described in Section 10.2(b) above, (C) change any amendment or waiver of any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2Agreement or any other Loan Document, or consent to any departure by any Loan Party therefrom, that by its express terms amends or modifies the rights or duties under this Agreement or such other Loan Document of one or more Classes of Lenders (Ebut not of one or more other Classes of Lenders) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver may be effected by an agreement or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless agreements in writing and signed by Agent, in addition to Borrower, the Borrower or the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the LendersParty, as the case may be, and the requisite percentage in accordance interest of each affected Class of Lenders that would be required to consent thereto under this Section if all such affected Classes of Lenders were the only Lenders hereunder at the time (including, for the avoidance of doubt, in the case of any amendment, waiver or consent in respect of conditions to extensions of Revolving Loans, which shall only require the consent of such requisite percentage of the Revolving Lenders).
(g) Notwithstanding anything to the contrary contained herein, guarantees, collateral security documents and related documents executed by the Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the provisions above)consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local Law or advice of local counsel or (ii) to cause such guarantee, affect the rights, privileges, duties collateral security document or obligations of Agent (including without limitation under the provisions of Section 9), under other document to be consistent with this Agreement and the other Loan Documents.
(h) Notwithstanding anything to the contrary contained herein, if at any time after the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an ambiguity, obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower 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.
(ci) No delay on Notwithstanding anything to the part contrary contained herein, the Administrative Agent and the Borrower may amend or modify this Agreement and any other Loan Document to adopt an alternate rate of Agent interest pursuant to, and in accordance with, Section 2.16(b), without any further action or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise consent of any other right, power or remedyparty to any Loan Document.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letters), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or the consent shall, unless in writing of each Lender directly and signed by all of adversely affected thereby (but not the Lenders directly affected thereby, in addition to Required Lenders and Borrowerin the case of (i)(A), do any of only the following: Lenders increasing their commitments shall be deemed directly and adversely affected thereby) shall be required with respect to:
(A) any increase any a Commitment of such Lender (provided, that waivers of Default Interest, conditions precedent, Defaults or Events of Default or mandatory prepayments or mandatory commitment reductions shall not constitute increases in the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increasecommitment), ;
(B) extend reductions of principal, interest or fees owed to such Lender (provided that, waivers of Default Interest, conditions precedent, Defaults, Events of Default or mandatory prepayments or changes to a financial ratio shall not constitute such a reduction);
(C) any amendment or waiver that would postpone the date scheduled fixed for any payment of any principal of (except as otherwise expressly set forth below in clause (C)) of, or interest on the Loans on, any Loan or LC Disbursement or interest thereon or any fees or other amounts payable hereunder or under reduce the other Loan Documentsamount of, waive or excuse any such payment, or (C) reduce postpone the principal amount scheduled date for the termination or reduction of any LoanCommitment (provided, that waivers of Default Interest, conditions precedent, Defaults, Events of Default or mandatory prepayments or changes to a financial ratio shall not constitute any such extension);
(D) any amendment or waiver that would change Section 2.21(b) or (c) in a manner that would alter the amount pro rata sharing of payments required thereby or rate change the provisions of interest thereon Section 8.2;
(provided that E) any change of any of the provisions of this Section 11.2 or the definition of “Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), Lenders” or any fees other provision hereof specifying the number or other amounts payable percentage of Lenders which are required to waive, amend or modify any rights hereunder or under make any determination or grant any consent hereunder, without the other Loan Documentsconsent of each Lender; andor
(F) any amendment to the definition of “Alternative Currency”;
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of otherwise expressly permitted under the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any the consent of the following: all Lenders (other than Defaulting Lenders) shall be required to:
(A) release any material guaranty under the Guarantee and Collateral Agreement Borrower (or permit an assignment of the Borrower’s Obligations), or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, any Guaranty; or
(B) change release all or substantially all collateral (if any) securing any of the definition Obligations;
(iii) prior to the Revolving Commitment Termination Date, unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding amount of the Revolving Commitments (or, if the Revolving Commitments have terminated, the aggregate Revolving Credit Exposure) (the “Required Revolving Lenders”), no such amendment or waiver shall, (i) amend, change, waive, discharge or terminate Sections 3.3 or 8.1 in a manner adverse to such Lenders (provided, that, for the avoidance of doubt, only the consent of the Required Lenders shall be necessary to waive any underlying Default or Event of Default) or (ii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iii); provided that notwithstanding anything to the contrary in the foregoing or elsewhere in this Agreement, only the consent of the Required Revolving Lenders (and not the Required Lenders) shall be required to waive a Default or an Event of Default as a result of the failure to observe or perform any covenant or agreement contained in Section 6.1 prior to the actual acceleration by the Revolving Lenders of all Obligations owing to the Revolving Lenders in accordance with Section 8.1; or
(iv) unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the aggregate outstanding amount of all outstanding Term Loans, no such amendment or waiver shall (i) amend, change, waive, discharge or terminate Section 2.12(e) so as to alter the manner of application of proceeds of any mandatory prepayment required by Section 2.12(a), (Cb), (c) change any provision of or (d) hereof or (ii) amend, change, waive, discharge or terminate this Section 10.111.2(a)(iv); provided further, that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (Di) amend the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (ii) 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, and amounts payable to such Lender hereunder may not be permanently reduced without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender); (iii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iv) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 2.10.2, or 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; (Ev) reduce the aggregate Pro Rata Shares (x) no Lender consent is required to effect an Incremental Amendment, Refinancing Amendment or Extension Amendment (except as expressly provided in Sections 2.23, 2.27 or 2.28 or in the following clause (y) or (z), as applicable), (y) in connection with an amendment that addresses solely a re-pricing transaction in which any amendmentClass of Term Loans is refinanced with a replacement Class of term loans bearing (or is modified in such a manner such that the resulting term loans bear) a lower All-In Yield (which may include other customary technical amendments related thereto, modificationincluding providing that such replacement term loans may have a prepayment premium in connection therewith) (a “Permitted Repricing Amendment”), waiver only the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche of Term Loans or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Partiesmodified Term Loans shall be required for such Permitted Repricing Amendment, and (z) in connection with an Extension Amendment, only the consent of the Lenders that will continue as a Lender in respect of the Extended Term Loans or Extended Revolving Commitments, as applicable, subject to such Extension Amendment shall be required for such Extension Amendment, (vi) the Required Lenders (shall determine whether or all Lenders directly affected thereby not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders, (vii) any applicable intercreditor agreement may be amended solely with the consent of the First Lien Administrative Agent to give effect thereto or to carry out the purposes thereof, (viii) except as set forth above in clauses (iii) and (iv) of this Section 11.2(b) preceding this proviso, there shall be no “class” voting requirement for amendments, modifications or supplements to the case Loan Documents, (ix) if the Administrative Agent and Borrower shall have jointly identified an obvious error or any error or omission of a technical or administrative nature in the Loan Documents, then the Administrative Agent and Borrower shall be permitted to amend such provision without further action or consent of any other party if the same is not objected to in writing by the Required Lenders to the Administrative Agent within five (5) Business Days following receipt of notice thereof, and (x) any Guaranty, Collateral Document and related documents may be, in accordance together with this Agreement, amended and/or waived with the provisions aboveconsent of the Administrative Agent at the request of Borrower without the need for consent by any other Lender if such amendment or waiver is delivered in order to (1) comply with local law or advice of local counsel or (2) cause such Guaranty, Collateral Document or other document to be consistent with this Agreement and the other Loan Documents. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, Revolving Loans, Swingline Loans and L/C Obligations and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all or a portion of the outstanding Term Loans of any Class (“Refinanced Term Loans”) with one or more tranches of replacement term loans having different terms (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus accrued interest, fees, expenses and premium (but nothing in this clause (a) shall limit the ability of the Borrower to incur Incremental Loans of the same Class or of a different Class at the same time if such incurrence is otherwise permitted hereunder), affect (b) the rightsWeighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans, privileges, duties at the time of such refinancing (except by virtue of amortization or obligations prepayment of Agent (including without limitation under the provisions Refinanced Term Loans prior to the time of Section 9), under this Agreement or any other Loan Document.
such incurrence) and (c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy such Replacement Term Loans shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyotherwise constitute Credit Agreement Refinancing Indebtedness.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or the consent shall, unless in writing of each Lender directly and signed by all of adversely affected thereby (but not the Lenders directly affected thereby, in addition to Required Lenders and Borrowerin the case of (i)(A), do any of only the following: Lenders increasing their commitments shall be deemed directly and adversely affected thereby) shall be required with respect to:
(A) any increase any a Commitment of such Lender (provided, that waivers of Default Interest, conditions precedent, Defaults or Events of Default or mandatory prepayments or mandatory commitment reductions shall not constitute increases in the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increasecommitment), ;
(B) extend reductions of principal, interest or fees owed to such Lender (provided that, waivers of Default Interest, conditions precedent, Defaults, Events of Default or mandatory prepayments or changes to a financial ratio shall not constitute such a reduction);
(C) any amendment or waiver that would postpone the date scheduled fixed for any payment of any principal of (except as otherwise expressly set forth below in clause (C)) of, or interest on the Loans on, any Loan or LC Disbursement or interest thereon or any fees or other amounts payable hereunder or under reduce the other Loan Documentsamount of, waive or excuse any such payment, or (C) reduce postpone the principal amount scheduled date for the termination or reduction of any LoanCommitment (provided, that waivers of Default Interest, conditions precedent, Defaults, Events of Default or mandatory prepayments or changes to a financial ratio shall not constitute any such extension);
(D) any amendment or waiver that would change Section 2.21(b) or (c) in a manner that would alter the amount pro rata sharing of payments required thereby or rate change the provisions of interest thereon Section 8.2;
(provided that E) any change of any of the provisions of this Section 11.2 or the definition of “Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), Lenders” or any fees other provision hereof specifying the number or other amounts payable percentage of Lenders which are required to waive, amend or modify any rights hereunder or under make any determination or grant any consent hereunder, without the other Loan Documentsconsent of each Lender; andor
(F) any amendment to the definition of “Alternative Currency”;
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of otherwise expressly permitted under the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any the consent of the following: all Lenders (other than Defaulting Lenders) shall be required to:
(A) release any material guaranty under the Guarantee and Collateral Agreement Borrower (or permit an assignment of the Borrower’s Obligations), or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, any Guaranty; or
(B) change release all or substantially all collateral (if any) securing any of the definition Obligations;
(iii) prior to the Revolving Commitment Termination Date, unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding amount of the Revolving Commitments (or, if the Revolving Commitments have terminated, the aggregate Revolving Credit Exposure) (the “Required Revolving Lenders”), no such amendment or waiver shall, (i) amend, change, waive, discharge or terminate Sections 3.3 or 8.1 in a manner adverse to such Lenders (provided, that, for the avoidance of doubt, only the consent of the Required Lenders shall be necessary to waive any underlying Default or Event of Default) or (ii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iii); provided that notwithstanding anything to the contrary in the foregoing or elsewhere in this Agreement, only the consent of the Required Revolving Lenders (and not the Required Lenders) shall be required to waive a Default or an Event of Default as a result of the failure to observe or perform any covenant or agreement contained in Section 6.1 prior to the actual acceleration by the Revolving Lenders of all Obligations owing to the Revolving Lenders in accordance with Section 8.1; or
(iv) unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the aggregate outstanding amount of all outstanding Term Loans, no such amendment or waiver shall (i) amend, change, waive, discharge or terminate Section 2.12(e) so as to alter the manner of application of proceeds of any mandatory prepayment required by Section 2.12(a), (Cb), (c) change any provision of or (d) hereof or (ii) amend, change, waive, discharge or terminate this Section 10.111.2(a)(iv); provided further, that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (Di) amend the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (ii) 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, and amounts payable to such Lender hereunder may not be permanently reduced without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender); (iii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iv) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 2.10.2, or 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; (Ev) reduce the aggregate Pro Rata Shares (x) no Lender consent is required to effect an Incremental Amendment, Refinancing Amendment or Extension Amendment (except as expressly provided in Sections 2.23, 2.27 or 2.28 or in the following clause (y) or (z), as applicable), (y) in connection with an amendment that addresses solely a re-pricing transaction in which any amendmentClass of Term Loans is refinanced with a replacement Class of term loans bearing (or is modified in such a manner such that the resulting term loans bear) a lower All-In Yield (which may include other customary technical amendments related thereto, modificationincluding providing that such replacement term loans may have a prepayment premium in connection therewith) (a “Permitted Repricing Amendment”), waiver only the consent of the Lenders holding Term Loans subject to such permitted repricing transaction that will continue as a Lender in respect of the repriced tranche of Term Loans or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Partiesmodified Term Loans shall be required for such Permitted Repricing Amendment, and (z) in connection with an Extension Amendment, only the consent of the Lenders that will continue as a Lender in respect of the Extended Term Loans or Extended Revolving Commitments, as applicable, subject to such Extension Amendment shall be required for such Extension Amendment, (vi) the Required Lenders (shall determine whether or all Lenders directly affected thereby not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders, (vii) any applicable intercreditor agreement may be amended solely with the consent of the First Lien Administrative Agent to give effect thereto or to carry out the purposes thereof, (viii) except as set forth above in clauses (iii) and (iv) of this Section 11.2(b) preceding this proviso, there shall be no “class” voting requirement for amendments, modifications or supplements to the case Loan Documents, (ix) if the Administrative Agent and Borrower shall have jointly identified an obvious error or any error or omission of a technical or administrative nature in the Loan Documents, then the Administrative Agent and Borrower shall be permitted to amend such provision without further action or consent of any other party if the same is not objected to in writing by the Required Lenders to the Administrative Agent within five (5) Business Days following receipt of notice thereof, and (x) any Guaranty, Collateral Document and related documents may be, in accordance together with this Agreement, amended and/or waived with the provisions aboveconsent of the Administrative Agent at the request of Borrower without the need for consent by any other Lender if such amendment or waiver is delivered in order to (1) comply with local law or advice of local counsel or (2) cause such Guaranty, Collateral Document or other document to be consistent with this Agreement and the other Loan Documents. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, Revolving Loans and L/C Obligations and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all or a portion of the outstanding Term Loans of any Class (“Refinanced Term Loans”) with one or more tranches of replacement term loans having different terms (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus accrued interest, fees, expenses and premium (but nothing in this clause (a) shall limit the ability of the Borrower to incur Incremental Loans of the same Class or of a different Class at the same time if such incurrence is otherwise permitted hereunder), affect (b) the rightsWeighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans, privileges, duties at the time of such refinancing (except by virtue of amortization or obligations prepayment of Agent (including without limitation under the provisions Refinanced Term Loans prior to the time of Section 9), under this Agreement or any other Loan Document.
such incurrence) and (c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy such Replacement Term Loans shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyotherwise constitute Credit Agreement Refinancing Indebtedness.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement or any other Loan Document, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letter and the Engagement Letter), the Intercreditor Agreement) nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin lieu of the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no such amendment, modification, waiver or increase the Commitment of any Lender without the written consent shall, unless in writing of each Lender directly and signed by all of the Lenders directly adversely affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments thereby (provided that only the Lenders participating a waiver of Default Interest, any condition precedent set forth in Section 3.1 or 3.2, any Default or Event of Default or any mandatory prepayment shall not constitute an increase in any such increase of the Commitments shall be considered directly affected by such increaseCommitment), ;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or reimbursement obligation with respect to a LC Disbursement or reduce the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest except pursuant to Section 2.6.12.16(b)), or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (provided that a waiver of Default Interest, any Default or Event of Default, any mandatory prepayment or any change to a financial ratio or the components thereof or calculation conventions with respect thereto shall not constitute such a reduction);
(iii) postpone the date scheduled for any payment of any principal of any Loan or postpone the scheduled date for the termination of any Commitment, without the written consent of each Lender directly and adversely affected thereby (provided that a waiver or postponement, as applicable, of Default Interest, any Default or Event of Default, any mandatory prepayment, any condition precedent set forth in Section 3.1 or 3.2 or any change to a financial ratio or the components thereof or calculation conventions with respect thereto shall not constitute such a postponement, reduction, waiver or excuse);
(iv) (A) change Section 2.21(b), 2.21(c) or 8.2 in a manner that would alter the pro rata sharing of payments by the Lenders or the order or priority of payments required thereby, (B) change Section 2.8 in a manner that would alter the pro rata sharing of Commitment reductions required thereby, (C) subordinate the payment priority of the Obligations or (D) change any other amounts payable hereunder provision of this Agreement or under any of the other Loan Documents; and
Documents that addresses the matters described in (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a partyA), do (B) or (C) or permit any action which would directly or indirectly have the effect of amending any of the following: provisions described in this clause (Aiv), in each case, without the written consent of each Lender directly and adversely affected thereby;
(v) release change any material guaranty of the provisions of this subsection (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(vi) except as otherwise permitted under the Guarantee and Collateral Agreement or Loan Documents, release all or substantially all of the Collateral granted guarantors, or limit the liability of such guarantors, under any guaranty agreement guaranteeing any of the Collateral DocumentsObligations, without the written consent of each Lender; or
(vii) except as otherwise specifically provided permitted under the Loan Documents, release (or subordinate the Lien of the Administrative Agent on) all or substantially all Collateral (if any) securing any of the Obligations, without the written consent of each Lender; provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person.
(c) 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, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender).
(d) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
(e) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the other Loan DocumentsParties (i) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Credit Exposure and any Incremental Commitments and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter Section 2.21(b) or (c) or any other provision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in subsection (d), (Be)(i) change or (f) of this Section.
(f) Notwithstanding anything to the definition contrary herein, but subject to the rights of Required Lenderseach Lender described in Section 10.2(b) above, (C) change any amendment or waiver of any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2Agreement or any other Loan Document, or consent to any departure by any Loan Party therefrom, that by its express terms amends or modifies the rights or duties under this Agreement or such other Loan Document of one or more Classes of Lenders (Ebut not of one or more other Classes of Lenders) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver may be effected by an agreement or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless agreements in writing and signed by Agent, in addition to Borrower, the Borrower or the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the LendersParty, as the case may be, and the requisite percentage in accordance interest of each affected Class of Lenders that would be required to consent thereto under this Section if all such affected Classes of Lenders were the only Lenders hereunder at the time (including, for the avoidance of doubt, in the case of any amendment, waiver or consent in respect of conditions to extensions of Revolving Loans, which shall only require the consent of such requisite percentage of the Revolving Lenders).
(g) Notwithstanding anything to the contrary contained herein, guarantees, collateral security documents and related documents executed by the Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the provisions above)consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local Law or advice of local counsel or (ii) to cause such guarantee, affect the rights, privileges, duties collateral security document or obligations of Agent (including without limitation under the provisions of Section 9), under other document to be consistent with this Agreement and the other Loan Documents.
(h) Notwithstanding anything to the contrary contained herein, if at any time after the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an ambiguity, obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower 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.
(ci) No delay on Notwithstanding anything to the part contrary contained herein, the Administrative Agent and the Borrower may amend or modify this Agreement and any other Loan Document to adopt an alternate rate of Agent interest pursuant to, and in accordance with, Section 2.16(b), without any further action or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise consent of any other right, power or remedyparty to any Loan Document.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Term Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.17 with respect to the implementation of a Benchmark Replacement or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letters, the Intercreditor Agreement) Board Observation Side Letter or the Warrants, each of which may be amended or modified in accordance with the terms thereof), nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of increase the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Commitment of any Lender without the written consent of such Lender;
(ii) reduce the principal amount of (except as otherwise expressly set forth below in clause (C)) any Loan or reduce the rate of interest on the Loans thereon, or reduce any fees or other amounts payable hereunder or under (including any Prepayment Premium), without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the rate set forth in Section 2.12(c) during the continuance of an Event of Default;
(iii) postpone the date fixed for any payment (other Loan Documentsthan any mandatory prepayment) of any principal of, or (C) reduce the principal amount of interest on, any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), Loan or any fees or other amounts payable hereunder or under reduce the amount of, waive or excuse any such payment or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender directly affected thereby (it being understood that the waiver of any Default or Event of Default or mandatory prepayment shall not constitute a postponement, extension, reduction, excuse or waiver any payment for purposes of this clause (iii));
(iv) (A) change Section 2.22(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, (B) change Section 2.7 in a manner that would alter the pro rata sharing of Commitment reductions thereby, (C) change Section 8.2 in a manner that would alter the pro rata sharing of payments or the order of application required thereby or (D) change any other provision of this Agreement or any of the other Loan Documents; and
Documents that addresses the matters described in subclause (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a partyA), do (B) or (C) or permit any action which would directly or indirectly have the effect of amending any of the following: provisions described in this clause (Aiv), in each case, without the written consent of each Lender directly affected thereby;
(v) release change any material guaranty under of the Guarantee and Collateral Agreement provisions of this subsection (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender directly affected thereby;
(vi) release all or substantially all of the Guarantors without the written consent of each Lender; or
(vii) release all or substantially all Collateral granted under (if any) securing any of the Collateral DocumentsObligations, except as otherwise specifically provided in this Agreement or without the other Loan Documentswritten consent of each Lender. provided, (B) change the definition of Required Lendersfurther, (C) change any provision of this Section 10.1that, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any no such amendment, modification, waiver or consent under the Loan Documents.
(b) No amendmentshall amend, modification, waiver modify or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), otherwise affect the rights, privileges, duties or obligations of the Administrative Agent without the prior written consent of such Person. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Term Loan Commitment of such Lender may not be increased, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (including other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender). Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without limitation under the provisions consent of Section 9any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Term Loan Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement Agreement. Notwithstanding anything herein or otherwise to the contrary, any Event of Default occurring hereunder shall continue to exist (and shall be deemed to be continuing) until such time as such Event of Default is waived in writing in accordance with the terms of this Section notwithstanding (i) any attempted cure or other action taken by the Borrower or any other Loan Document.
Person subsequent to the occurrence of such Event of Default or (cii) No delay on any action taken or omitted to be taken by the part of Administrative Agent or any Lender in prior to or subsequent to the exercise occurrence of any right, power or remedy shall operate as such Event of Default (other than the granting of a waiver thereofin writing in accordance with the terms of this Section). Notwithstanding anything to the contrary herein, nor shall the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement any single Loan Document to cure any obvious ambiguity, omission, mistake, defect or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyinconsistency.
Appears in 1 contract
Sources: Term Loan Agreement (Root, Inc.)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 11.2(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letter), the Intercreditor Agreement) nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower the Loan Parties and the applicable Required Lenders, or the Loan Party (Parties and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no such amendment, modification, waiver extend or consent shall, unless in writing and signed by all of increase the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Commitment of any principal Lender without the written consent of such Lender;
(except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1)thereon, or reduce any fees or other amounts payable hereunder, without the written consent of each Lender affected thereby;
(iii) postpone the date fixed for any payment of any principal (excluding any mandatory prepayment) of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiiv) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under change Section 2.21(b) or 2.21(c) in a manner that would alter the Guarantee and Collateral Agreement or release all or substantially all pro rata sharing of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documentspayments required thereby, (B) change Section 2.8 in a manner that would alter the definition pro rata sharing of Required LendersCommitment reductions required thereby, (C) change any provision Section 8.2 in a manner that would alter the pro rata sharing of this Section 10.1, payments or the order of application required thereby or (D) amend the provisions change any other provision of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any of the other Loan Document.
Documents that addresses the matters described in clause (cA), (B) No delay on or (C) or permit any action which would directly or indirectly have the part effect of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by amending any of them the provisions described in this clause (b)(iv), in each case without the written consent of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.each Lender;
Appears in 1 contract
Sources: Credit Agreement (Biote Corp.)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Loan Parties and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any of the other Loan Documents (including without limitation, the Intercreditor Agreement) Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed permitted by Borrower and the applicable Loan Party clause (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lendersb) below, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or of the other Loan Documents (other than the Fee Letter), nor consent to any departure by any Loan Party therefrom, shall in any event be effective except:
(i) as provided in Section 2.22, Section 2.23 or Section 2.26 or as otherwise expressly provided in any Loan Document; or
(ii) the same shall be in writing and signed by the Loan Parties and the Required Lenders, or the Loan Parties and the Administrative Agent with the consent of the Required Lenders, provided, however, that, except as provided in Section 2.22, Section 2.23 or Section 2.26 or as otherwise expressly provided in any Loan Document, no such agreement shall:
(A) increase or extend the Commitment of any Lender without the written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults, Events of Default or a mandatory prepayment or change in financial ratio shall not constitute an increase or extension of the Commitments of any Lender);
(B) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, default interest, Defaults, Events of Default or a mandatory prepayment or a change in any financial ratio shall not constitute a reduction of principal amount of any Loan or LC Disbursement or a reduction of the interest rate);
(C) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender directly and adversely affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, default interest, Defaults, Events of Default or a mandatory prepayment or a change in any financial ratio shall not constitute such extension or waiver or deduction, as applicable);
(D) change Section 2.20(b) or Section 2.20(c) (or any other provision hereof or of any other Loan Documents requiring ratable sharing of payments or order of payments) in a manner that would alter the pro rata sharing of payments, or the order of payments, as applicable, required thereby, without the written consent of each Lender directly and adversely affected thereby;
(E) change any of the provisions of this clause (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender (it being understood 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 on substantially the same basis as the Loans and Commitments are included on the Closing Date); or
(F) unless pursuant to a transaction permitted by this Agreement (including Section 7.03), release all or substantially all of the Collateral or release all or substantially all of the Guarantees provided by the Subsidiary Loan Parties hereunder under the Collateral Agreement, in each case, without the prior written consent of each Lender; provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent or any Issuing Bank without the prior written consent of such Person. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 10.02 and any consent by any Lender pursuant to this Section 10.02 shall bind any assignee of such Lender.
(c) 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, the Revolving Commitment Termination Date or the Maturity Date may not be extended and, except as otherwise set forth herein, amounts payable to such Lender hereunder may not be permanently reduced, in each case without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender).
(d) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion), or shall (to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the applicable Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the applicable Secured Parties, in any property or so that the security interests therein comply with applicable law.
(e) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) without the consent of any Lender (but with the consent of the Loan Parties and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Section 2.17, Section 2.18 and Section 2.19), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
(f) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Loan Parties (i) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter Section 2.20(b) or (c) or any other provision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in clause (e) or clause (f)(i) of this Section 10.02.
(g) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Borrowers may enter into Incremental Facility Amendments in accordance with Section 2.22, Refinancing Amendments in accordance with Section 2.23, Extension Amendments in accordance with Section 2.26, and such Incremental Facility Amendments, Extension Amendments and Refinancing Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document.
(h) Notwithstanding the foregoing, any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Commitments of a particular Class (but not the rights or duties of Lenders holding Loans or Commitments of any other Class) will require only the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders.
(i) Notwithstanding the foregoing, any amendment, waiver or other modification of, or consent to, the provisions of Article VI or Section 8.02 (or the component financial definitions solely for purposes of the financial covenant set forth in Article VI or Section 8.02, as applicable, and for no other purpose under this Agreement) or any Default or Event of Default resulting from a failure to perform or observe Article VI or Section 8.02 will require only the consent of the Required Revolving Lenders.
(j) Notwithstanding the foregoing, no Lender’s consent is required to effect any amendment, modification or supplement to any Acceptable Intercreditor Agreement and/or any other intercreditor arrangements entered into in connection herewith (i) that is for the purpose of adding the holders of Indebtedness (or any Permitted Refinancing Indebtedness of the foregoing) (or a Debt Representative with respect thereto) as parties thereto, as expressly contemplated by the terms of such Acceptable Intercreditor Agreement or such other intercreditor arrangement, as applicable (it being understood that any such amendment, modification or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing), (ii) that is expressly contemplated by any Acceptable Intercreditor Agreement and/or any other intercreditor arrangements entered into in connection herewith or (iii) that effects changes that are not material to the interests of the Lenders; provided that no such agreement shall directly and adversely amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent.
(k) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and the Loan Parties without the need to obtain the consent of any other Lender if such amendment is delivered in order to correct, amend or cure any ambiguity, mistake, inconsistency or defect or correct any typographical or obvious error or other manifest error in any Loan Document or any necessary or desirable technical change (including, without limitation, to effect administrative changes of a technical or immaterial nature or incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document) and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof. Guarantees, collateral documents, security documents, intercreditor agreements, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, modified, terminated or waived, and consent to any departure therefrom may be given, without the consent of any Lender if such amendment, modification, waiver or consent shallis given in order to (i) comply with local law or advice of counsel or (ii) cause such guarantee, unless in writing collateral document, security document or related document to be consistent with this Agreement and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents. The Loan Parties and the Administrative Agent may, or (C) reduce without the principal amount consent of any Loanother Lender, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant effect amendments to Section 2.6.1), or any fees or other amounts payable hereunder or under this Agreement and the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless Documents as may be necessary in writing and signed by all the reasonable opinion of the Lenders in addition to Borrower Company and the applicable Loan Party (with respect Administrative Agent to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend effect the provisions of Section 2.10.22.22, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan DocumentsSection 2.23 and Section 2.26.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
Appears in 1 contract
Waiver; Amendments. (a) Except as otherwise expressly provided No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in this Agreementexercising any right or power hereunder or any other Loan Document, and no amendment, modification or waiver ofcourse of dealing between any Loan Party and the Administrative Agent, or consent with respect toany Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 10.2(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.17 with respect to the implementation of a Benchmark Replacement or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationDocuments, nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower the Borrower, Holdings and the applicable Loan Party (Required Lenders or the Borrower, Holdings and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
that no amendment or waiver shall: (i) no increase the Commitment of any Lender without the written consent of such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase)Lender, (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; and
amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby, (iiiv) no such amendmentchange Section 8.2 or Sections 2.22(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, modificationwithout the written consent of each Lender, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do v) change any of the following: provisions of this Section 10.2 or the definition of “Required Lenders”, “Required Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; (Avi) release any material guarantor or limit the liability of any such guarantor under any guaranty under agreement (other than the Guarantee and Collateral Agreement release of a Guarantor in connection with its designation as a Unrestricted Subsidiary pursuant to the terms of Section 5.14), without the written consent of each Lender; (vii) release all or release substantially all collateral (if any) securing any of the Obligations or agree to subordinate any Lien in all or substantially all of the Collateral granted under collateral securing the Collateral DocumentsObligations to any other creditor of Holdings, except as otherwise specifically provided in this Agreement the Borrower or any Restricted Subsidiary, without the other Loan Documentswritten consent of each Lender; (viii) prior to the Revolving Commitments Termination Date, unless also signed by Required Revolving Lenders, no such amendment or waiver shall, (A) waive any Default or Event of Default for purposes of Section 3.2, (B) change the definition of Required Lendersamend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (C) change any provision of amend, change, waive, discharge or terminate this Section 10.110.2(b)(viii); (ix) change Section 2.9(b) in a manner that would alter the ratable reduction or termination of Commitments required thereby, (D) amend without the provisions written consent of Section 2.10.2, each Lender; or (Ex) reduce subordinate the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all payment priority of the LendersObligations or subordinate the Liens granted to the Administrative Agent (for the benefit of the holders of the Obligations) in the Collateral, as without the case may bewritten consent of each Lender; provided, in accordance with the provisions above)further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or any Issuing Bank without the prior written consent of such Person. Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without the consent of any Lender (including without limitation under but with the provisions consent of Section 9the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.19, 2.20, 2.21 and 10.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; provided, further, that (v) a Refinancing Facility Amendment shall be effective if signed by the Loan Parties, the Administrative Agent, each Person that agrees to provide a portion of the applicable Refinancing Facility and, if such Refinancing Facility is a Refinancing Revolving Facility, each Issuing Bank and the Swingline Lender, (w) this Agreement may be amended (or amended and restated) to change, modify or alter Section 2.22 or Article VIII or any other provision hereof relating to the pro rata sharing of payments among the Lenders to the extent necessary to implement any Refinancing Facility in accordance with Section 2.27 with the written consent of the Administrative Agent, the Borrower, the other Loan Document.
Parties, the Lenders providing such Refinancing Facility and, if such Refinancing Facility is a Refinancing Revolving Facility, each Issuing Bank and the Swingline Lender thereunder, (cx) No delay any Permitted Amendments allowing for extensions of the maturity date(s) of any Loans and/or Commitment shall be effective if signed by the Administrative Agent, the Loan Parties and those Lenders willing to extend the maturity date(s) of such Loans and/or Commitments hereunder (it being understood that each Lender with a Loan or Commitment being extended shall have the opportunity to participate in such extension on the part same terms and conditions as each other Lender with the same Type of Loan or Commitment), (y) the Administrative Agent and the Borrower shall be permitted to amend any provision of the Loan Documents (and such amendment shall become effective without any further action or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise consent of any other rightparty to any Loan 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 and (z) this Agreement may be amended with the written consent of the Administrative Agent, power the Additional Lenders, as applicable, and the Borrower (A) to add one or remedymore Incremental Revolving Commitments or Incremental Term Loans to this Agreement, in each case subject to the limitations in Section 2.25, and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder (including, in the case of any Incremental Term Loan, customary mandatory prepayment provisions reasonably acceptable to the Administrative Agent if the Lenders providing such Incremental Term Loan so require) and (B) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing such additional credit facilities to obtain comparable tranche voting rights with respect to each such Incremental Revolving Commitment or Incremental Term Loan and to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder. 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, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender).
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Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party, the Administrative Agent, any Issuer, any Trustee or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by the Loan Parties therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 13.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the other Loan Documents (including without limitationforegoing, the Intercreditor extension of credit by a Lender shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement) , nor consent to any departure by the Loan Parties therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower the Loan Parties and the applicable Required Lenders or the Loan Party (Parties and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which givengiven and (B) no amendment or waiver of any provision of the Bonds, the Indentures, the Loan Agreements and the Bond Purchase Agreements shall be consented to by the Administrative Agent without the consent of the Required Lenders; provided, however, that:
that no amendment or waiver shall: (i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Bond or reduce the amount or rate of interest thereon on any Bond, or reduce any fees payable hereunder, without the written consent of each Lender, (provided that Required Lenders may rescind an imposition ii) postpone the date fixed for any payment of default any principal of, or interest pursuant to Section 2.6.1)on, any Bond or any fees or other amounts payable hereunder or under reduce the other Loan Documents; and
amount of, waive or excuse any such payment, without the written consent of each Lender, (iiiii) no such amendmentchange Section 4.5(b) or 4.6 in a manner that would alter the pro rata sharing of payments required thereby, modificationwithout the written consent of each Lender, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do iv) change any of the following: provisions of this Section 13.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender; (Av) release any material guarantor or limit the liability of any such guarantor under any guaranty under agreement, without the Guarantee and Collateral Agreement or written consent of each Lender; (vi) release all or substantially all collateral securing any of the Collateral granted under Obligations, without the Collateral Documentswritten consent of each Lender; provided further, except as that no such agreement shall amend, modify or otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of the Administrative Agent without the prior written consent of such Person. Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without the consent of any Lender (including without limitation under but with the provisions consent of the Loan Parties and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Lender shall no longer hold any Bonds (but such Lender shall continue to be entitled to the benefits of Section 913.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it under this Agreement or any other Loan DocumentAgreement.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
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Sources: Guaranty and Credit Agreement (Macquarie Infrastructure CO LLC)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
that (i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), Lender; (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby; (C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documentsamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby; and
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender; (with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender; (AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under any Guaranty, without the Collateral Documentswritten consent of each Lender; or (G) release all or substantially all collateral (if any) securing any of the Obligations, except as otherwise specifically provided in this Agreement without the written consent of each Lender; or (ii) prior to the other Loan DocumentsRevolving Commitments Termination Date, (B) change the definition of unless also signed by Required Lenders, (C) change any provision of this Section 10.1no such amendment or waiver shall, (Di) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect waive any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.Default
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. #96545445v8
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement or Conforming Changes (as set forth therein) and Section 2.23, no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Engagement Letter or any other fee letters entered into after the date hereof with the Administrative Agent), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverno amendment, thatwaiver or consent shall:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of increase the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Commitment of any principal Lender without the written consent of such Lender;
(except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon thereon, or reduce any fees or other amounts payable hereunder, without the written consent of each Lender affected thereby (provided except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders) and (y) that Required Lenders may rescind an imposition any amendment or modification of default defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest pursuant to Section 2.6.1or fees for purposes of this clause (ii));
(iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiiv) no such amendment(A) change Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, modification, waiver without the written consent of each Lender or (B) change Section 8.2 in a manner that would alter the pro rata sharing of payments or the order of application required thereby without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender affected thereby;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do v) change any of the following: provisions of this subsection (Ab) release or the definition of “Required Facility Lenders”, “Required Lenders” or any material guaranty under other provision hereof specifying the Guarantee and Collateral Agreement number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender affected thereby;
(vi) release all or substantially all of the Guarantors, or limit the liability of such Guarantors, under any guaranty agreement guaranteeing any of the Obligations, without the written consent of each Lender (except as expressly provided in Section 9.11);
(vii) release all or substantially all Collateral securing any of the Obligations, without the written consent of each Lender (except as expressly provided in Section 9.11);
(viii) release the Borrower from all or substantially all of its obligations under the Guarantee and Collateral Agreement without the written consent of each Lender (except as expressly provided in Section 9.11);
(ix) except as expressly permitted herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted under the Collateral Security Documents, except as otherwise specifically provided in this Agreement to any other Indebtedness or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the LendersLien, as the case may be, in accordance with without the provisions above)written consent of each Lender; #96545445v8 provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights, privileges, duties or obligations of the Administrative Agent, the Swingline Lender or any Issuing Bank without the prior written consent of such Person. 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, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender). Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement. Notwithstanding the foregoing, this Agreement may be amended or amended and restated (w) with the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all or a portion of the Loans outstanding under an Incremental Term Facility or any prior Replacement Facility (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (i) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus fees and expenses in connection therewith, (ii) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Refinanced Term Loans) and (iii) all other terms applicable to such Replacement Term Loans shall be substantially identical to or, taken as a whole, 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 Loans in effect immediately prior to such refinancing, (x) with the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Revolving Facility (as defined below) to permit the refinancing of any Refinanced Term Loans or the Revolving Facility (“Refinanced Revolving Facility” and collectively with Refinanced Term Loans, “Refinanced Facilities”) with a replacement revolving facility hereunder (“Replacement Revolving Facility” and collectively with Replacement Term Loans, “Replacement Facilities”); provided that (i) the aggregate principal amount of such Replacement Revolving Facility shall not exceed the aggregate principal amount of such Refinanced Term Loans or Aggregate Revolving Commitment Amount, as applicable, plus fees and expenses in connection therewith, (ii) the final maturity date of such Replacement Revolving Facility shall be no earlier than the final maturity date of the Refinanced Term Loans or the Maturity Date, as applicable, (iii) if refinancing or replacing Refinanced Term Loans, the Replacement Revolving Facility shall be fully drawn on the closing date thereof and the proceeds of the Replacement Revolving Facility shall be used to repay the outstanding Refinanced Term Loans, (iv) if refinancing or replacing a Refinanced Revolving Facility, the Replacement Revolving Facility shall refinance or replace the entire Refinanced Revolving Facility and shall be drawn on the closing date thereof to the extent necessary to repay, and the proceeds of such draw under the Replacement Revolving Facility shall be used to the extent necessary to repay, the outstanding amounts under the Refinanced Revolving Facility and (v) the Replacement Revolving Facility shall be on terms and pursuant to documentation to be determined by the Borrower, the Administrative Agent and the Persons willing to provide such Replacement Revolving Facility; provided that to the extent such terms and documentation are not consistent with the applicable Refinanced Facility (other than with respect to pricing), they shall be reasonably satisfactory to the Administrative Agent, (y) in connection with any Incremental Facility or incurrence of Indebtedness under Section 7.1(k), to add terms more favorable to the Lenders with only the consent of the Borrower, the Administrative Agent and the lenders under the relevant Incremental Facility, if applicable, provided that such covenants shall be for the benefit of all Facilities and (z) with the written consent of only the Required Facility Lenders having loans, other credit exposure and unused commitments under each Facility hereunder that benefits from the covenants under #96545445v8 Article VI to waive, amend or modify Article VI, waive any Default or Event of Default in respect of Article VI, waive, amend or modify any condition precedent set forth in Section 3.2 hereof as it pertains to any Revolving Loan and/or waive any requirement to be in compliance with Article VI on a pro forma basis in connection with any transaction. In addition, notwithstanding the foregoing, this Agreement, including this Section 10.2, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.23 to add any Incremental Facility to this Agreement and (a) to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement (including without limitation the rights of the lenders under Incremental Facility to share ratably with the provisions of Section 9Revolving Facility in prepayments pursuant to Sections 2.11 and 2.12), under the Guarantee and Collateral Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any determination of the Required Lenders and (c) to amend other provision of the Loan Documents so that the Incremental Facility is appropriately incorporated (including this Section 10.2). Notwithstanding anything to the contrary contained in this Section 10.2, the Administrative Agent and the Borrower, in their sole discretion, may collectively amend, modify or supplement any provision of this Agreement or any other Loan Document.
Document to (ci) No delay on amend, modify or supplement such provision or cure any ambiguity, omission, mistake, error, defect or inconsistency, so long as such amendment, modification or supplement does not directly and adversely affect the part obligations of Agent or any Lender in or Issuing Bank and (ii) permit additional Domestic Subsidiaries (excluding any U.S. Pass Through Foreign Holdcos) of the exercise of Borrower to guarantee the Obligations and/or provide Collateral therefor. Such amendments shall become effective without any right, power further action or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise consent of any other rightparty to any Loan Document. Upon the request of the Borrower, power or remedythe Administrative Agent shall release any Guarantor from the Guarantee and Collateral Agreement if such Guarantor ceases to qualify as a Guarantor (in accordance with the definition of such term as provided herein). Notwithstanding the foregoing, this Agreement may be amended in accordance with Section 2.27 (including as contemplated by an Extension Agreement in accordance with Section 2.27 evidencing Extension Permitted Amendments).
Appears in 1 contract
Waiver; Amendments. (a) Except as otherwise expressly provided in this Agreement, no No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or any of the other Loan Documents (including without limitation, or any subordination provision relating to any subordination provision relating to any Debt that is contractually subordinated to the Intercreditor AgreementObligations) shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
: (i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly and adversely affected thereby, in addition to Required Lenders and the Borrower, do any of the following: (A1) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase)[reserved], (B2) extend the postpone any date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documentsfor, or (C) reduce or forgive the principal amount of any Loan, it being understood that the waiver of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness of principal, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.12.7.1) (provided that the Required Lenders may waive the application of Section 2.10.2); provided, further, that only the Lenders participating in such reduction of the amount of any such Loan, the amount or rate of such interest thereon, or any such fees or other amounts payable hereunder or under the other Loan DocumentsDocuments shall be considered directly affected by such reduction, (3) amend the provisions of Section 2.12.2 or change or have the effect of changing the priority or pro rata treatment of any payments (including voluntary and mandatory prepayments) or (4) subordinate the right of payment of all or any portion of the Obligations (as such definition was in effect on the Effective Date) to any other Debt; and
and (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to the Borrower and the applicable Loan Party (with respect to Loan Documents to which the Borrower or such Loan Party is a party), do any of the following: (A1) release extend final maturity of any material guaranty under the Guarantee and Collateral Agreement Loans, it being understand that a waiver of any Default, Event of Default or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.mandatory prepayment shall not constitute an
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, Borrower and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, be in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), ) under this Agreement or any other Loan Document, and no amendment, modification, waiver or consent shall be effective as to the Agent until the Agent receives a copy of such amendment, waiver or consent.
(c) No failure or delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. The rights and remedies of the Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by this Section 10.1, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower in any case shall entitle such Borrower to any other or further notice or demand in similar or other circumstances.
(d) [Reserved].
(e) [Reserved].
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), L▇▇▇▇▇;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or “Required Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under any Guaranty, without the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, written consent of each Lender;
(BG) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2subordinate, or (E) reduce the aggregate Pro Rata Shares required to effect enter into any amendment, modification, waiver or consent under having the effect of subordinating, the Obligations to any other Indebtedness without the written consent of each Lender unless each adversely affected Lender has been offered a reasonable, bona fide opportunity to fund or otherwise provide or acquire its pro rata share of such other Indebtedness on the same economic terms received by the lenders providing such other Indebtedness; provided that this clause shall not apply to any Indebtedness that is expressly permitted by the Loan Documents.Documents as in effect on the Second Amendment Effective Date to be senior to the Loans and/or to be secured by a Lien that is senior to the Lien (if any) securing the Loans; or
(bii) No amendmentprior to the Revolving Commitments Termination Date, modificationunless also signed by Required Revolving Lenders, no such amendment or waiver or consent shall, (i) with respect to any Revolving Borrowing, waive any Default or Event of Default for purposes of Section 3.2 (excluding clause (c) thereof), (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(ii); or
(iii) unless in writing and also signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all other than Defaulting Lenders) holding in the aggregate at least a majority of the Lendersoutstanding amount of the Delayed Draw Term Loan and any unfunded Delayed Draw Commitment, as the case may beno such amendment or waiver shall (i) with respect to any Delayed Draw Term Loan Borrowing, waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in accordance with the provisions abovea manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iii); provided further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such L▇▇▇▇▇ sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9), under this Agreement 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or any other not to allow a Loan Document.
(c) No delay on the part of Agent or any Lender Party to use cash collateral in the exercise context of any right, power a bankruptcy or remedy insolvency proceeding and such determination shall operate as a waiver thereof, nor shall any single or partial exercise by any be binding on all of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyLenders.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Collateral Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any of the other Loan Documents (including without limitation, the Intercreditor Agreement) Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed permitted by Borrower and the applicable Loan Party paragraph (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares b) of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lendersthis Section 10.1, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, or any Lender may have had notice or knowledge of such Default at the time.
(b) None of this Agreement, any other Loan Document or any provision hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower, and the Administrative Agent, with the consent of the Required Lenders, and in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, however, that:
provided that no such agreement shall (i) no such amendment, modification, waiver increase or consent shall, unless in writing and signed by all extend the Commitment of any Lender (or reinstate any Commitment that has been terminated pursuant to the Lenders directly affected therebyterms hereof) or increase the amount of Loans of any Lender, in addition to Required Lenders and Borrowerany case, do any or change the currency in which Loans are available thereunder, without the written consent of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase)Lender, (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, reduce the amount or rate of interest thereon or reduce any fees payable hereunder without the written consent of each Lender affected thereby (provided that Required Lenders may rescind an imposition other than any waiver of any applicable default interest pursuant to Section 2.6.1interest), or any fees or other amounts payable hereunder or under (iii) postpone the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all scheduled final maturity of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.any
Appears in 1 contract
Sources: Bridge Loan Credit Agreement (Tupperware Brands Corp)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Term Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.17 with respect to the implementation of a Benchmark Replacement or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letters, the Intercreditor Agreement) Board Observation Side Letter or the Warrants, each of which may be amended or modified in accordance with the terms thereof), nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no increase the Commitment of any Lender without the written consent of such amendment, modification, Lender;
(ii) reduce the principal amount of any Loan or reduce the rate of interest thereon (it being agreed that the waiver or consent shall, unless in writing and signed by all modification of the Lenders directly affected thereby, in addition MFN Provision with respect to Required Lenders and Borrower, do any ▇▇▇▇ ▇▇▇▇ Debt shall only require the consent of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increaseRequired Lenders), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or reduce any fees or other amounts payable hereunder or under (including any Prepayment Premium), without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the rate set forth in Section 2.12(c) during the continuance of an Event of Default;
(iii) postpone the date fixed for any payment (other Loan Documentsthan any mandatory prepayment) of any principal of, or (C) reduce the principal amount of interest on, any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), Loan or any fees or other amounts payable hereunder or under reduce the amount of, waive or excuse any such payment or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender directly affected thereby (it being understood that the waiver of any Default or Event of Default or mandatory prepayment shall not constitute a postponement, extension, reduction, excuse or waiver any payment for purposes of this clause (iii));
(iv) (A) change Section 2.22(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, (B) change Section 2.7 in a manner that would alter the pro rata sharing of Commitment reductions thereby, (C) change Section 8.2 in a manner that would alter the pro rata sharing of payments or the order of application required thereby or (D) change any other provision of this Agreement or any of the other Loan Documents; and
Documents that addresses the matters described in subclause (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a partyA), do (B) or (C) or permit any action which would directly or indirectly have the effect of amending any of the following: provisions described in this clause (Aiv), in each case, without the written consent of each Lender directly affected thereby;
(v) release change any material guaranty under of the Guarantee and Collateral Agreement provisions of this subsection (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender directly affected thereby;
(vi) release all or substantially all of the Guarantors without the written consent of each Lender; or
(vii) release all or substantially all Collateral granted under (if any) securing any of the Collateral DocumentsObligations, except as otherwise specifically provided in this Agreement or without the other Loan Documentswritten consent of each Lender. provided, (B) change the definition of Required Lendersfurther, (C) change any provision of this Section 10.1that, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any no such amendment, modification, waiver or consent under the Loan Documents.
(b) No amendmentshall amend, modification, waiver modify or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), otherwise affect the rights, privileges, duties or obligations of the Administrative Agent without the prior written consent of such Person. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Term Loan Commitment of such Lender may not be increased, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (including other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender). Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without limitation under the provisions consent of Section 9any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Term Loan Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement Agreement. Notwithstanding anything herein or otherwise to the contrary, any Event of Default occurring hereunder shall continue to exist (and shall be deemed to be continuing) until such time as such Event of Default is waived in writing in accordance with the terms of this Section notwithstanding (i) any attempted cure or other action taken by the Borrower or any other Loan Document.
Person subsequent to the occurrence of such Event of Default or (cii) No delay on any action taken or omitted to be taken by the part of Administrative Agent or any Lender in prior to or subsequent to the exercise occurrence of any right, power or remedy shall operate as such Event of Default (other than the granting of a waiver thereofin writing in accordance with the terms of this Section). Notwithstanding anything to the contrary herein, nor shall the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement any single Loan Document to cure any obvious ambiguity, omission, mistake, defect or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyinconsistency.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), ▇▇▇▇▇▇;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or “Required Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under any Guaranty, without the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, written consent of each Lender;
(BG) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2subordinate, or (E) reduce the aggregate Pro Rata Shares required to effect enter into any amendment, modification, waiver or consent under having the effect of subordinating, the Obligations to any other Indebtedness without the written consent of each Lender unless each adversely affected Lender has been offered a reasonable, bona fide opportunity to fund or otherwise provide or acquire its pro rata share of such other Indebtedness on the same economic terms received by the lenders providing such other Indebtedness; provided that this clause shall not apply to any Indebtedness that is expressly permitted by the Loan Documents.Documents as in effect on the Second Amendment Effective Date to be senior to the Loans and/or to be secured by a Lien that is senior to the Lien (if any) securing the Loans; or
(bii) No amendmentprior to the Revolving Commitments Termination Date, modificationunless also signed by Required Revolving Lenders, no such amendment or waiver or consent shall, (i) with respect to any Revolving Borrowing, waive any Default or Event of Default for purposes of Section 3.2 (excluding clause (c) thereof), (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(ii); or
(iii) unless in writing and also signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding amount of the Delayed Draw A-1 Term Loan and any unfunded Delayed Draw A-1 Commitment, no such amendment or waiver shall (i) with respect to any Delayed Draw A-1 Term Loan Borrowing, waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iii); or
(iv) unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding amount of the Delayed Draw A-2 Term Loan and any unfunded Delayed Draw A-2 Commitment, as the case may beno such amendment or waiver shall (i) with respect to any Delayed Draw A-2 Term Loan Borrowing, waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in accordance with the provisions abovea manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 11.2(a)(iv); provided further, that no such agreement shall amend, modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such ▇▇▇▇▇▇ sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9), under this Agreement 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or any other not to allow a Loan Document.
(c) No delay on the part of Agent or any Lender Party to use cash collateral in the exercise context of any right, power a bankruptcy or remedy insolvency proceeding and such determination shall operate as a waiver thereof, nor shall any single or partial exercise by any be binding on all of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyLenders.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 11.2(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender, shall operate as otherwise expressly provided in this Agreementa waiver thereof, no amendment, modification nor shall any single or waiver ofpartial exercise of any such right or power, or consent with respect toany abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders, or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, thatno amendment, waiver or consent shall:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of increase the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment Commitment of any principal Lender without the written consent of such Lender;
(except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (Cii) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon (provided that other than to waive any Default or Event of Default or obligation of the Borrowers to pay Default Interest, which shall only require the consent of the Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1Lenders), or reduce any fees or other amounts payable hereunder, without the written consent of each Lender affected thereby;
(iii) postpone the date fixed for any payment (other than a mandatory prepayment) of any principal of, or interest on, any Loan or LC Disbursement or any fees or other amounts payable hereunder or under reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iv) (A) change Section 2.21(b) or 2.21(c) in a manner that would alter the pro rata sharing of payments required thereby, (B) change Section 2.8 in a manner that would alter the pro rata sharing of Commitment reductions required thereby, (C) change Section 8.2 in a manner that would alter the pro rata sharing of payments or the order of application required thereby or (D) change any other provision of this Agreement or any of the other Loan Documents; and
Documents that addresses the matters described in clause (ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a partyA), do (B) or (C) or permit any action which would directly or indirectly have the effect of amending any of the following: provisions described in this clause (Aiv), in each case without the written consent of each Lender;
(v) release change any material guaranty under of the Guarantee and Collateral Agreement provisions of this paragraph (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of LEGAL02/42400466v16 Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(vi) waive any of the conditions precedent (including the waiver of any Default or Event of Default) to the making or issuance of Revolving Loans pursuant to Section 3.2 without the written consent of the Required Lenders;
(vii) release all or substantially all of the Collateral granted Guarantors, or limit the liability of such Guarantors, under the Collateral DocumentsGuaranty Agreement, without the written consent of each Lender;
(viii) release all or substantially all collateral (if any) securing any of the Obligations, without the written consent of each Lender; or
(ix) subordinate the payment priority of the Obligations or, except as otherwise specifically provided permitted hereunder, subordinate the Liens (if any) granted to the Administrative Agent in this Agreement the collateral (if any) securing any of the Obligations or release all or substantially all collateral (if any) securing any of the other Loan DocumentsObligations, (B) change without the definition written consent of Required Lenderseach Lender; provided, (C) change any provision of this Section 10.1further, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any that no such amendment, modification, waiver or consent under the Loan Documents.
(b) No amendmentshall amend, modification, waiver modify or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. 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, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (including other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender). Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without limitation under the provisions consent of Section 9any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement Agreement. Notwithstanding anything herein or otherwise to the contrary, any Event of Default occurring hereunder shall continue to exist (and shall be deemed to be continuing) until such time as such Event of Default is waived in writing in accordance with the terms of this Section notwithstanding (i) any attempted cure or other action taken by the Borrower or any other Loan Document.
Person subsequent to the occurrence of such Event of Default or (cii) No delay on any action taken or omitted to be taken by the part of Administrative Agent or any Lender in prior to or subsequent to the exercise occurrence of any right, power or remedy shall operate as such Event of Default (other than the granting of a waiver thereofin writing in accordance with the terms of this Section). Notwithstanding anything to the contrary herein, nor shall the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement any single Loan Document to cure any obvious ambiguity, omission, mistake, defect or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyinconsistency.
Appears in 1 contract
Sources: Credit Agreement (Skyward Specialty Insurance Group, Inc.)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), ▇▇▇▇▇▇;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under any Guaranty, without the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, written consent of each Lender;
(BG) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2subordinate, or (E) reduce the aggregate Pro Rata Shares required to effect enter into any amendment, modification, waiver or consent under having the effect of subordinating, the Obligations to any other Indebtedness without the written consent of each Lender unless each adversely affected Lender has been offered a reasonable, bona fide opportunity to fund or otherwise provide or acquire its pro rata share of such other Indebtedness on the same economic terms received by the lenders providing such other Indebtedness; provided that this clause shall not apply to any Indebtedness that is expressly permitted by the Loan Documents.Documents as in effect on the Second Amendment Effective Date to be senior to the Loans and/or to be secured by a Lien that is senior to the Lien (if any) securing the Loans; or
(bii) No amendmentprior to the Revolving Commitments Termination Date, modificationunless also signed by Required Lenders, no such amendment or waiver or consent shall, unless (i) waive any Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in writing and signed by Agenta manner adverse to such Lenders or (iii) amend, in addition to Borrowerchange, the applicable Loan Partieswaive, and Required Lenders discharge or terminate Article VI (or all Lenders directly affected thereby any defined term used therein) or all of the Lendersthis Section 11.2(a)(ii); provided further, as the case may bethat no such agreement shall amend, in accordance with the provisions above), modify or otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such ▇▇▇▇▇▇ sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9), under this Agreement 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or any other not to allow a Loan Document.
(c) No delay on the part of Agent or any Lender Party to use cash collateral in the exercise context of any right, power a bankruptcy or remedy insolvency proceeding and such determination shall operate as a waiver thereof, nor shall any single or partial exercise by any be binding on all of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyLenders.
Appears in 1 contract
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification by law. No amendment or waiver of, or consent with respect to, of any provision of this Agreement or of any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 10.2(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including as provided in Section 2.18 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or of the other Loan Documents (including without limitationother than the Fee Letter), the Intercreditor Agreement) nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower the Borrowers and the applicable Loan Party (Required Lenders, or the Borrowers and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Shares the consent of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; providedprovided that, howeverin addition to the consent of the Required Lenders, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (HireQuest, Inc.)
Waiver; Amendments. (a) Except No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or any other Loan Document, and no course of dealing between any Loan Party and the Administrative Agent or any Lender, shall operate as otherwise expressly a waiver thereof, nor shall any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided in this Agreement, no amendment, modification or by Law. No waiver of, or consent with respect to, of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 11.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise provided in this Agreement, including, without limitation, as provided in Section 2.16 with respect to the implementation of a Benchmark Replacement Rate or Benchmark Conforming Changes (as set forth therein), no amendment or waiver of any provision of this Agreement or the other Loan Documents (including without limitationother than the Fee Letter), nor consent to any departure by the Intercreditor Agreement) Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the applicable Loan Party (Required Lenders or the Borrower and the Administrative Agent with respect to Loan Documents to which Borrower or such Loan Party is a party), by the consent of the Required Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, amendment or waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: :
(A) increase the Commitment of any Lender without the written consent of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), Lender;
(B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) or interest on the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, Loan or LC Disbursement or reduce the amount or rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby;
(C) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1), or any fees or other amounts payable hereunder or under reduce the other Loan Documents; andamount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each Lender affected thereby;
(iiD) no such amendmentchange Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby or change the provisions of Section 8.2, modification, waiver or without the written consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party each Lender;
(with respect to Loan Documents to which Borrower or such Loan Party is a party), do E) change any of the following: provisions of this Section 11.2 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each Lender;
(AF) release any material guaranty under the Guarantee and Collateral Agreement or Borrower without the consent of each Lender, or, release all or substantially all of the Collateral granted Guarantors or limit the liability of all or substantially all of the Guarantors under any Guaranty, without the Collateral Documentswritten consent of each Lender; or
(G) release all or substantially all collateral (if any) securing any of the Obligations, except as otherwise specifically provided in this Agreement or without the other Loan Documentswritten consent of each Lender; or
(ii) prior to the Revolving Commitments Termination Date, (B) change the definition of unless also signed by Required Lenders, no such amendment or waiver shall, (Ci) change waive any provision Default or Event of Default for purposes of Section 3.2, (ii) amend, change, waive, discharge or terminate Sections 3.2 or 8.1 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate Article VI (or any defined term used therein) or this Section 10.111.2(a)(ii); provided further, (D) amend the provisions of Section 2.10.2that no such agreement shall amend, modify or (E) reduce the aggregate Pro Rata Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), otherwise affect the rights, privileges, duties or obligations of Agent the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of such Person. Notwithstanding anything to the contrary herein, (including i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitment of such Lender may not be increased or extended, (y) amounts payable to such Lender hereunder may not be permanently reduced without limitation the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender) and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (ii) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 11.3), such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement; (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 9), under this Agreement 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; and (iv) the Required Lenders shall determine whether or any other not to allow a Loan Document.
(c) No delay on the part of Agent or any Lender Party to use cash collateral in the exercise context of any right, power a bankruptcy or remedy insolvency proceeding and such determination shall operate as a waiver thereof, nor shall any single or partial exercise by any be binding on all of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedyLenders.
Appears in 1 contract
Waiver; Amendments. (a) Except as otherwise expressly provided in this Agreement, no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or any of the other Loan Documents (including without limitation, the Intercreditor Agreement) shall in any event be effective unless the same shall be in writing and signed by Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), by Lenders having aggregate Pro Rata Term Loan Shares of not less than the aggregate Pro Rata Term Loan Shares expressly designated herein with respect thereto or, in the absence of such express designation herein, by Required Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders directly affected thereby, in addition to Required Lenders and Borrower, do any of the following: (A) increase any of the Commitments (provided that only the Lenders participating in any such increase of the Commitments shall be considered directly affected by such increase), (B) extend the date scheduled for payment of any principal of (except as otherwise expressly set forth below in clause (C)) ), or interest on Return Premium with respect to, the Loans or any fees or other amounts payable hereunder or under the other Loan Documents, or (C) reduce the principal amount of any Loan, the amount or rate of interest thereon (provided that Required Lenders may rescind an imposition of default interest pursuant to Section 2.6.1)the Return Premium, or any fees or other amounts payable hereunder or under the other Loan Documents; and
(ii) no such amendment, modification, waiver or consent shall, unless in writing and signed by all of the Lenders in addition to Borrower and the applicable Loan Party (with respect to Loan Documents to which Borrower or such Loan Party is a party), do any of the following: (A) release any material guaranty under the Guarantee and Collateral Agreement or release all or substantially all of the Collateral granted under the Collateral Documents, except as otherwise specifically provided in this Agreement or the other Loan Documents, (B) change the definition of Required Lenders, (C) change any provision of this Section 10.1, (D) amend the provisions of Section 2.10.2, or (E) reduce the aggregate Pro Rata Term Loan Shares required to effect any amendment, modification, waiver or consent under the Loan Documents.
(b) No amendment, modification, waiver or consent shall, unless in writing and signed by Agent, in addition to Borrower, the applicable Loan Parties, Borrower and Required Lenders (or all Lenders directly affected thereby or all of the Lenders, as the case may be, in accordance with the provisions above), affect the rights, privileges, duties or obligations of Agent (including without limitation under the provisions of Section 9), under this Agreement or any other Loan Document.
(c) No delay on the part of Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
Appears in 1 contract
Sources: Credit Agreement (Veru Inc.)