TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement. (i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment of the Lenders and the Holders or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement), extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- --------------------------------------------------------------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic DocumentOperative Agreement); provided, to the extent no Default or Event -------- of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document Operative Agreement in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time matter and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall remain, respecting such second Operative Agreement, in its original form without regard to any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (acting as to the extent such Credit Party is a Financing Party) have any right party to consent or to withhold consent with regard to any matter concerning any such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, ----------------------- extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, ----------------- the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the -------- second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such ----------------- failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any -------- action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party the Lessee and/or the Construction Agent (to the extent such Credit Party the Lessee and/or the Construction Agent is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party the Lessee and/or the Construction Agent without the prior written consent (not to be unreasonably withheld or delayed) of such the Lessee and/or the Construction Agent; and provided further, that the Lessee shall in no event have the right to consent to modifications to the terms of (a) the Credit PartyAgreement required by the Lenders pursuant to Section 2.6(e) of the Credit Agreement in connection with an extension of the maturity date of the Loans beyond the Basic Term Expiration Date or (b) the Trust Agreement required by the Holders pursuant to Section 3.3 of the Trust Agreement in connection with an extension of the maturity date of the Holder Advances beyond the Basic Term Expiration Date. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment of the Lenders and the Holders or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement), extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) ), or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Lessee to the Lessor or any Financing Party under the Operative Agreements, or (iii) 65 71 terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit AgreementAgreement (which shall also require the consent of the Agent), or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent, or (v) permit the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the aggregate Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote MatterParties; provided, however, no individual Lender's the Lender Commitment nor of any Holder's Holder Commitment Lender shall not be increased without its consent (which consent may be given or withheld in the sole discretion of such party's express consent, Lender) and the Holder Commitment of any Holder shall not be increased without its consent (which consent may be given or withheld in each the sole discretion of such party's sole discretionHolder). If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. Nothing herein shall relieve the Defaulting Lender from any of its obligations under the Operative Agreements. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder. Nothing herein shall relieve the Defaulting Holder from any of its obligations under the Operative Agreements.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document of the parties hereto agrees that:
(a) except as expressly provided in subsections (b) and (c) below and except for the Unanimous Vote Matters, each Operative Agreement may only be terminated, amended, modified, extended supplemented, restated, replaced or waived or modified only by an instrument upon the approval in writing signed byby the Borrower, subject to Article VIII of the Trust Agreement regarding termination of the Trust AgreementAgent, the Majority Secured Parties and each Credit Party the Lessee (to the extent such Credit Party the Lessee is a party to such Basic DocumentOperative Agreement); provided, each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement (to the extent no the Lessee is not a party to such Operative Agreement) which adversely affects the rights of the Lessee shall also require the written consent of the Lessee (to be given or withheld in the reasonable discretion of the Lessee) unless a Lease Default, Lease Event of Default, Agency Agreement Default or Agency Agreement Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amendprovided, further, that each termination, amendment, modification, extension, supplement, waive restatement, replacement or modify waiver regarding any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall also require the written consent of each Lender and each Holder Financing Party affected by such matter. At no time shall any Credit Party thereby (acting the “Unanimous Vote Matters”), so as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.to
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-pro rata reduction in each such commitment of Lender Commitment and a corresponding reduction in the Lenders and Lessor Commitment or, regarding the Holders or Lender Commitment, as otherwise provided in Section 2.5 of each Credit Agreement, reduce the Credit Agreement and Section 3.1(e) of Lender Commitments and/or the Trust Agreement), Lessor Commitment or extend the scheduled date of maturity of any Note, Note or any Lessor Advance;
(ii) extend the scheduled Expiration Date, extend the Construction Period Termination Date, Date or extend any payment date of any Note or Certificate, Lessor Advance;
(iii) reduce the stated rate of interest Interest payable on any Note, Note or reduce the stated Holder Lessor Yield payable on any Certificate Lessor Advance (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Lessor Yields, which waiver shall require the consent of the Majority Credit Lenders, the Majority Mortgage Lenders or the Lessor, as the case may be), ;
(iv) modify the priority of any Lien in favor of the Agent under any Security Document, ;
(v) subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder the Lessor;
(as the case may bevi) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's ’s Lender Commitment or the Holder Lessor Commitment of such Holder, or the Lessor;
(iivii) terminate, amend, supplement, waive waive, discharge or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, Majority Credit Lenders or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or Majority Mortgage Lenders;
(viii) release a material portion of the Collateral (except in accordance with Section 8.8);
(ix) release the Borrower or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Borrower or the Lessee to the Lessor or any other Financing Party under the Operative Agreements, or ; or
(iiix) terminate, amend, supplement, waive waive, discharge or modify any provision of Section 7 8.6 of this Agreement.
(b) the Mortgage Instrument (and any UCC Financing Statement related thereto) may only be terminated, amended, modified, extended supplemented, restated, replaced or waived upon the approval in writing by the Borrower, the Lessor, (to the extent relating to the Lessee as opposed to relating to the Borrower) the Lessee and (to the extent relating to the Lien in favor of the Credit Agreement, Lenders under the Mortgage Instrument or UCC Financing Statement) the Majority Lenders.
(ivc) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such each termination, amendment, modification, extension, supplement, restatement, replacement or waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of regarding any waiverOperative Agreement affecting Sections 4.1, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements8.2, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default8.3, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided9.1, however10.1, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent10.2, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are11.1, in the opinion of the Majority Lenders12.1, satisfied13.1, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender13.2, a "Defaulting Lender") then14.1, for so long as such failure shall continue14.2, the Defaulting Lender shall (unless the Lessee and the Majority Lenders14.3, determined as if the Defaulting Lender were not a "Lender"15.1, shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.15.2,
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic DocumentOperative Agreement); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall remain, respecting such matter. At no time shall second Operative Agreement, in its original form without regard to any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (acting as to the extent such Credit Party is a Financing Party) have any right party to consent or to withhold consent with regard to any matter concerning any such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 12.5 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.412.5; provided that any action taken pursuant to the second paragraph of this Section 12.4 12.5 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.412.5; provided that any action taken pursuant to the second paragraph of this Section 12.4 12.5 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic DocumentOperative Agreement); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document Operative Agreement in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (to be determined in good faith with such determination not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time matter and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall remain, respecting such second Operative Agreement, in its original form without regard to any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such termination, amendment, supplement, waiver or modification has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (acting as to the extent such Credit Party is a Financing Party) have any right party to consent or to withhold consent with regard to any matter concerning any such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any date of payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, Note or reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party the Construction Agent, the Lessee or AOR from its their respective obligations under any Operative Agreement, release all or substantially all of the Tranche A Guarantors from their obligations under Section 8B of the Credit Agreement or otherwise alter any payment obligations of consent to the assignment or transfer by any Credit Party (except with respect to the Lessor rights of Lessee under Section 25.2 of the Lease) of its rights or any Financing Party obligations under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative AgreementsAgreements prior to the event or condition so waived, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Construction Agent and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided provided, that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting LenderLender unless it otherwise consents. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Construction Agent and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided provided, that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting HolderHolder unless it otherwise consents.
Appears in 1 contract
Samples: Participation Agreement (American Oncology Resources Inc /De/)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party the Lessee and/or the Construction Agent (to the extent such Credit Party the Lessee and/or the Construction Agent is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party the Lessee and/or the Construction Agent without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Partythe Lessee and/or the Construction Agent. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At Notwithstanding the foregoing, no time shall any Credit Party (acting as a Financing Party) have any right such termination, amendment, supplement, waiver or modification shall, without the consent of the Agent and, to consent or to withhold consent with regard to any matter concerning any Operative Agreement.the extent affected thereby, each
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment of the Lenders and the Holders or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement), extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Lessee to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments Commitment of any Lender and/or any increase in the Holder Commitments Commitment of any Holder shall be a matter decided by the Lenders and/or Holders providing such increase together with the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party the Lessee and/or the Construction Agent (to the extent such Credit Party the Lessee and/or the Construction Agent is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party the Lessee and/or the Construction Agent without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Partythe Lessee and/or the Construction Agent. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment of the Lenders and the Holders or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement), extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Lessee to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments Commitment of any Lender and/or any increase in the Holder Commitments Commitment of any Holder shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERSUnanimous Vote Matters. ------- --------------------------------------------------------------- Each Basic Document of the parties hereto agrees that:
(a) except as expressly provided in subsections (b) and (c) below and except for the Unanimous Vote Matters, each Operative Agreement may only be terminated, amended, modified, extended supplemented, restated, replaced or waived or modified only by an instrument upon the approval in writing signed byby the Borrower (to the extent the Borrower is a party to such Operative Agreement in its capacity as "borrower" or "issuer" under the Note Purchase Agreement and to the extent such termination, subject amendment, waiver or modification increases the Obligations or has a material adverse effect on the Borrower), the Agent (to Article VIII of the Trust Agreement regarding termination of extent the Trust AgreementAgent's rights or obligations are affected by such termination, amendment or modification), the Majority Secured Parties and each Credit Party the Lessee (to the extent such Credit Party the Lessee is a party to such Basic DocumentOperative Agreement); provided, each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement, which adversely affects the rights of the Lessee shall also require the written consent of the Lessee (not to the extent no be unreasonably withheld or delayed) unless a Lease Default or Lease Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amendprovided, further, that each termination, amendment, modification, extension, supplement, waive restatement, replacement or modify waiver regarding any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall also require the written consent of each Lender and each Holder Financing Party affected by such matter. At no time shall any Credit Party thereby (acting the "Unanimous Vote Matters"), so as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.to
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment of the Lenders and the Holders or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement), extend the scheduled date of maturity of any Note, ;
(ii) extend the scheduled Expiration Date, extend the Construction Period Termination Date, Date or extend any payment date of any Note Credit Note, Mortgage Loan or Certificate, reduce Lessor Advance;
(iii) change the stated rate of interest payable on any Note, Credit Note or Mortgage Loan or reduce the stated Holder Lessor Yield payable on any Certificate the Lessor Advance (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder YieldsLessor Yield), ;
(iv) modify the priority of any Lien in favor of the Agent under any Security Document, ;
(v) subordinate any obligation owed to such Credit Note Purchaser, such Mortgage Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder the Lessor;
(as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (iivi) terminate, amend, supplement, waive waive, discharge or modify any provision of this Section 12.4 or reduce change the percentages specified in the definitions of Majority LendersCredit Note Purchasers, Majority Holders Mortgage Lenders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or ;
(vii) release a material portion of the Collateral (except in accordance with Section 8.8);
(viii) release the Borrower or release the Lessee or any Credit Party Guarantor from its obligations under any Operative Agreement or otherwise alter any payment obligations (including, without limitation, the Make-Whole Amount and any principal prepayment provisions) of the Borrower or the Lessee or any Credit Party Guarantor to the Lessor or any Financing Party under the Operative Agreements, or ;
(iiiix) terminate, amend, supplement, waive waive, discharge or modify any provision of Section 7 Sections 8.6 or 8.7 of this Agreement;
(x) impose any additional affirmative obligation or requirement on the applicable Financing Party, make any existing obligations of the Credit Agreementapplicable Financing Party materially more onerous, or further obligate, prohibit or restrict the applicable Financing Party or its right, title or interest under the Operative Agreements in any material manner; or
(ivxi) permit Advances for Work modify or amend any definition so as to affect the matters described in excess the foregoing (i)-(x).
(b) No Mortgage Instrument (nor any UCC Financing Statement related thereto) may be terminated, amended, modified, extended (other than by UCC Financing Statement continuations or extensions), supplemented, restated, replaced or waived without the approval in writing by the Borrower, the Majority Mortgage Lenders, and (to the extent relating to the Lessee as opposed to relating to the Borrower) the Lessee.
(c) each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement affecting Sections 4.1, 8.2, 8.3, 9.1, 10.1, 10.2, 11.1, 12.1, 13.1, 13.2, 14.1, 14.2, 14.3, 15.1, 15.2, 15.3, 16.1, 16.2, 18.1, 19.1, 19.2, 20.2, 20.3 (excluding all provisions related to payments in Sections 20.2 or 20.3), 22.1, 22.4, 22.5, 23.1 or 24.1 of the Construction BudgetLease or affecting in any way the Collateral, or (v) eliminate including the automatic option under Section 5.3(b) Property, requires the consent of the Agency Agreement requiring that Majority Mortgage Lenders.
(d) Notwithstanding any acquisition by the Construction Agent pay certain liquidated damages Lessee or any Affiliate of the Lessee of any interest in exchange any Financing, no such party (hereinafter a "Related Financing Party") shall have any voting rights pursuant to the Operative Agreements as a Primary Financing Party. Without limiting the generality of the foregoing, with respect to calculating the voting percentage, any Financing held by a Related Financing Party shall be treated as if the balance on such Financing was zero. Upon the occurrence and during the continuation of any Lease Default or Lease Event of Default, the rights of each Related Financing Party to any and all amounts otherwise payable to such Related Financing Party pursuant to the Operative Agreements shall be subordinated and deferred (and the rights of each Related Financing Party to such amounts shall be voided without further action for the conveyance duration of a Property any such Lease Default or Lease Event of Default) until such time as all amounts payable to all other parties to any of the Construction AgentOperative Agreements have been paid in full. NOTHING IN THIS SECTION 12.4(d) SHALL BE DEEMED TO CONSTITUTE A RIGHT OF, OR A GRANT OF ANY RIGHT TO, THE LESSEE OR ANY AFFILIATE OF THE LESSEE TO ACQUIRE ANY PORTION OF THE FINANCING OR TO CAUSE ANY PRIMARY FINANCING PARTY TO SELL OR ASSIGN ANY PART OF THE FINANCING TO THE LESSEE OR ANY AFFILIATE OF THE LESSEE. Any such termination, amendment, supplement, waiver waiver, discharge or modification approved, executed, adopted or consented to in conformity with this Section 12.4 shall apply equally to each of the Credit Note Purchasers, the Mortgage Lenders and the Holders Lessor and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties Parties, the Agent and each Credit Party (to the extent such Credit Party is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as the case may be), fund any Advance referenced in Section 2.1 of the Construction Agency Agreement in excess of the then current aggregate sum of the Available Commitments and the Available Holder Commitments, elect to decline the funding of any Transaction Expense with respect to Sections 7.1(a) or 7.1(b), elect to decline the funding of any indemnity payment by the Owner Trustee with respect to Section 11.8 or increase the amount or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit AgreementAgreement (which shall also require the consent of the Agent), or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Construction Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent, or (v) permit the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) increase or reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable Fees, fund any Advance referenced in Section 2.1 of the Agency Agreement in excess of the then current aggregate sum of the Available Commitments and the Available Holder Commitments, elect to such Lender decline the funding of any Transaction Expense with respect to Sections 7.1(a) or Holder (as 7.1(b), elect to decline the case may be) funding of any indemnity payment by the Owner Trustee with respect to Section 12.9 or increase the amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material any portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit AgreementAgreement (which shall also require the consent of the Agent), or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent, or (v) permit the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date, or (vi) consent to the modification or amendment of any Sublease in any material respect, unless and until SALI or the Lessee shall have purchased or otherwise acquired 100% of the outstanding stock of Karrington. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.to
Appears in 1 contract
Samples: Participation Agreement (Sunrise Assisted Living Inc)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document of the parties hereto agrees that:
(a) except as expressly provided in subsections (b) and (c) below and except for the Unanimous Vote Matters, each Operative Agreement may only be terminated, amended, modified, extended supplemented, restated, replaced or waived or modified only by an instrument upon the approval in writing signed byby the Borrower, subject to Article VIII of the Trust Agreement regarding termination of the Trust AgreementAgent, the Majority Secured Parties and each Credit Party Parties, the Lessee (to the extent such Credit Party the Lessee is a party to such Basic Document)Operative Agreement) and, with respect to the Guaranty only, the Guarantors; provided, each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement, which adversely affects the rights of the Lessee shall also require the written consent of the Lessee (not to the extent no be unreasonably withheld or delayed) unless a Lease Default or Lease Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amendprovided, further, that each termination, amendment, modification, extension, supplement, waive restatement, replacement or modify waiver regarding any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall also require the written consent of each Lender and each Holder Financing Party affected by such matter. At no time shall any Credit Party thereby (acting the "Unanimous Vote Matters"), so as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.to
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-pro rata reduction in each such commitment of Lend Commitment and/or Lessor Commitment or, regarding the Lenders and the Holders or Lender Commitment, as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of Agreement, reduce the Trust Agreement), Lender Commitments and/or the Lessor Commitments or extend the scheduled date of maturity of any Note, ;
(ii) extend the scheduled Expiration Date, extend the Construction Period Termination Date, Date or extend any payment date of any Note or Certificate, Lessor Advance;
(iii) reduce the stated rate of interest payable on any Note, Note or reduce the stated Holder Lessor Yield payable on any Certificate Lessor Advance (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Lessor Yields), ;
(iv) modify the priority of any Lien in favor of the Agent under any Security Document, ;
(v) subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder the Lessor;
(as the case may bevi) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's Lender Commitment or the Holder Lessor Commitment of such Holder, or the Lessor;
(iivii) terminate, amend, supplement, waive waive, discharge or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders Lenders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or ;
(viii) release a material portion of the Collateral (except in accordance with Section 8.8);
(ix) release the Borrower or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Borrower or the Lessee to the Lessor or any Financing Party under the Operative Agreements, or ;
(iiix) terminate, amend, supplement, waive waive, discharge or modify any provision of Section 7 8.6 of this Agreement;
(xi) impose any additional affirmative obligation or requirement on the applicable Financing Party, make any existing obligations of the Credit Agreementapplicable Financing Party materially more onerous, or further obligate, prohibit or restrict the applicable Financing Party or its right, title or interest under the Operative Agreements in any material manner; or
(ivxii) permit Advances for Work modify or amend any definition so as to affect the matters described in excess the foregoing (i)-(xi).
(b) the Mortgage Instrument (and any UCC Financing Statement related thereto) may only be terminated, amended, modified, extended supplemented, restated, replaced or waived upon the approval in writing by the Borrower, the Lessor, (to the extent relating to the Lessee as opposed to relating to the Borrower) the Lessee and (to the extent relating to the Lien in favor of the Construction BudgetLenders under such Mortgage Instrument or UCC Financing Statement) the Majority Lenders.
(c) each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement affecting Sections 4.1, 8.2, 8.3, 9.1, 10.1, 10.2, 11.1, 12.1, 13.1, 13.2, 14.1, 14.2, 14.3, 15.1, 15.2, 15.3, 16.1, 16.2, 18.1, 19.1, 19.2, 20.2, 20.3 (v) eliminate the automatic option under Section 5.3(b) excluding all provisions related to payments in Sections 20.2 or 20.3), 22.1, 22.4, 22.5, 23.1 or 24.1 of the Agency Agreement requiring that Lease or affecting in any way the Construction Agent pay certain liquidated damages in exchange for Collateral or any Property requires the conveyance consent of a Property to the Construction AgentLessor. Any such termination, amendment, supplement, waiver waiver, discharge or modification approved, executed, adopted or consented to pursuant to this Section 12.4 shall apply equally to each of the Lenders and the Holders Lessor and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; providedIf, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan Lessor Advance are, in the reasonable opinion of the Majority LendersAgent, satisfied, any Lender the Lessor shall fail to fulfill its obligations to make such Loan (any such LenderLessor Advance, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender Lessor shall (unless the Lessee and the Majority LendersSecured Parties, determined as if the Defaulting Lender Lessor were not a "LenderFinancing Party", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers waivers, discharges or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when Lessor Advances for purposes of performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant with respect to the second paragraph of this Section 12.4 a Unanimous Vote Matter shall not be effective as against the Defaulting LenderLessor without the Lessor's consent. If If, at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance Loan are, in the reasonable opinion of the Majority HoldersAgent, satisfied, any Holder Lender shall fail to fulfill its obligations to make such Holder Advance (any such HolderLoan, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder such Lender shall (unless the Lessee and the Majority HoldersSecured Parties, determined as if the Defaulting Holder such Lender were not a "HolderFinancing Party", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers waivers, discharges or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when Loans for purposes of performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant with respect to the second paragraph of this Section 12.4 a Unanimous Vote Matter shall not be effective as against the Defaulting Holdersuch Lender without such Lender's consent.
Appears in 1 contract
Samples: Participation Agreement (West Corp)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- --------------------------------------------------------------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic Document); provided, to the extent no Default or Event of -------- Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any Credit Party (acting as a other Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreementthe Agent.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, ----------------------- extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable Fees, fund any Advance referenced in Section 2.1 of the Agency Agreement in excess of the then current aggregate sum of the Available Commitments and the Available Holder Commitments, elect to such Lender decline the funding of any Transaction Expense with respect to Sections 7.1(a) or Holder (as 7.1(b), elect to decline the case may be) funding of any indemnity payment by the Owner Trustee with respect to Section 12.9 or increase the amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, ; or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, ; or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, Agreement (which shall also require the consent of the Agent); or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent; or (v) permit the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, ----------------- the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the -------- second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such ----------------- failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the -------- second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party the Lessee and/or the Construction Agent (to the extent such Credit Party the Lessee and/or the Construction Agent is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party the Lessee and/or the Construction Agent without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Partythe Lessee and/or the Construction Agent. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time matter and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with remain, respecting such second Operative Agreement, in its original form without regard to any matter concerning any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and the Lessee and/or the Construction Agent (to the extent the Lessee and/or the Construction Agent is a party to such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Lessee to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit AgreementAgreement (which shall also require the consent of the Agent), or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) 50 55 of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent, or (vi) permit the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
Samples: Participation Agreement (Applied Analytical Industries Inc)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document of the parties hereto agrees that:
(a) except as expressly provided in subsections (b) and (c) below and except for the Unanimous Vote Matters, each Operative Agreement may only be terminated, amended, modified, extended supplemented, restated, replaced or waived or modified only by an instrument upon the approval in writing signed byby the Borrower, subject to Article VIII of the Trust Agreement regarding termination of the Trust AgreementAgent, the Majority Secured Parties and each Credit Party the Lessee (to the extent such Credit Party the Lessee is a party to such Basic DocumentOperative Agreement); provided, each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement which adversely affects the rights of the Lessee shall also require the written consent of the Lessee (not to the extent no be unreasonably withheld or delayed) unless a Lease Default or Lease Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amendprovided, further, that each termination, amendment, modification, extension, supplement, waive restatement, replacement or modify waiver regarding any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall also require the written consent of each Lender and each Holder Financing Party affected by such matter. At no time shall any Credit Party thereby (acting the “Unanimous Vote Matters”), so as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.to
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-pro rata reduction in each such commitment of Lender Commitment and a corresponding reduction in the Lenders and Lessor Commitment or, regarding the Holders or Lender Commitment, as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of Agreements, reduce the Trust Agreement), Lender Commitments and/or the Lessor Commitment or extend the scheduled date of maturity of any Note, Note or any Lessor Advance;
(ii) extend the scheduled Expiration Date, extend the Construction Period Termination Date, Date or extend any payment date of any Note or Certificate, Lessor Advance;
(iii) reduce the stated rate of interest Interest payable on any Note, Note or reduce the stated Holder Lessor Yield payable on any Certificate Lessor Advance (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Lessor Yields), ;
(iv) modify the priority of any Lien in favor of the Agent under any Security Document, ;
(v) subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder the Lessor;
(as the case may bevi) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) or extend the expiration date of such Lender's ’s Lender Commitment or the Holder Lessor Commitment of such Holder, or the Lessor;
(iivii) terminate, amend, supplement, waive waive, discharge or modify any provision of this Section 12.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders Secured Parties or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or Lenders;
(viii) release a material portion of the Collateral (except in accordance with Section 8.8);
(ix) release the Borrower or release any Credit Party the Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party the Borrower or the Lessee to the Lessor or any Financing Party under the Operative Agreements, or ; or
(iiix) terminate, amend, supplement, waive waive, discharge or modify any provision of Section 7 8.6 of this Agreement.
(b) the Mortgage Instrument (and any UCC Financing Statement related thereto) may only be terminated, amended, modified, extended supplemented, restated, replaced or waived upon the approval in writing by the Borrower, the Lessor, (to the extent relating to the Lessee as opposed to relating to the Borrower) the Lessee and (to the extent relating to the Lien in favor of the Credit AgreementLenders under the Mortgage Instrument or UCC Financing Statement) the Majority Lenders.
(c) each termination, amendment, modification, extension, supplement, restatement, replacement or waiver regarding any Operative Agreement affecting Sections 4.1, 8.2, 8.3, 9.1, 10.1, 10.2, 11.1, 12.1, 13.1, 13.2, 14.1, 14.2, 14.3, 15.1, 15.2, 15.3, 16.1, 16.2, 18.1, 19.1, 19.2, 20.2, 20.3 (iv) permit Advances for Work excluding all provisions related to payments in excess Sections 20.2 or 20.3), 22.1, 22.4, 22.5, 23.1 or 24.1 of the Construction Budget, Lease or (v) eliminate affecting in any way the automatic option under Section 5.3(b) Collateral or the Property requires the consent of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction AgentLessor. Any such termination, amendment, supplement, waiver waiver, discharge or modification approved, executed, adopted or consented to pursuant to this Section 12.4 shall apply equally to each of the Lenders and the Holders Lessor and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase If, at a time when the conditions precedent set forth in the Lender Commitments and/or Operative Agreements to any increase Lessor Advance are, in the Holder Commitments reasonable opinion of the Agent, satisfied, the Lessor shall be a matter decided by fail to fulfill its obligations to make such Lessor Advance, then, for so long as such failure shall continue, the Lessor shall (unless the Lessee and the Majority Secured Parties Parties, determined as if the Lessor were not a “Financing Party”, shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers, discharges or modifications under the Operative Agreements to have no Lessor Advances for purposes of performing the computation of Majority Secured Parties, and not as shall have no rights under this Section 12.4; provided that any action taken with respect to a Unanimous Vote Matter; providedMatter shall not be effective as against the Lessor without the Lessor’s consent. If, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the reasonable opinion of the Majority LendersAgent, satisfied, any Lender (other than the Conduit) shall fail to fulfill its obligations to make such Loan (any such LenderLoan, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting such Lender shall (unless the Lessee and the Majority LendersSecured Parties, determined as if the Defaulting such Lender were not a "Lender"“Financing Party”, shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers waivers, discharges or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when Loans for purposes of performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant with respect to the second paragraph of this Section 12.4 a Unanimous Vote Matter shall not be effective as against such Lender without such Lender’s consent. Notwithstanding the Defaulting Lender. If at a time when foregoing, no termination, amendment, supplement, waiver or modification of any Operative Agreement shall, without the conditions precedent set forth in consent of each Hedge Provider, (i) terminate, amend, supplement, waive or modify any provision of the applicable provisions of the Operative Agreements relating to Hedging Agreements or the calculation of amounts payable in connection therewith, (ii) extend the scheduled date of maturity of any payment obligation owing to any Holder Advance areHedge Provider pursuant to the Operative Agreements, in extend the opinion last day of the Majority HoldersTerm, satisfiedextend any payment date of any obligation owing to any Hedge Provider pursuant to the Operative Agreements, reduce any Holder shall fail amount payable to fulfill its obligations any Hedge Provider pursuant to make such Holder Advance the Operative Agreements, modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to any Hedge Provider, or (iii) terminate, amend, supplement, waive or modify any such Holder, a "Defaulting Holder") then, for provision of this Section 12.4 or (so long as such failure shall continue, Wachovia is a Lender or Wachovia Development Corporation is the Defaulting Holder shall (unless Lessor) reduce the Lessee and percentages specified in the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation definition of Majority Holders or Majority Secured Parties, or (except in accordance with the Operative Agreements) permit any additional rights of assignment or transfer by the Lessor of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8 and provided, the foregoing shall have no rights not impair the release of Liquid Collateral in accordance with the express provisions of the Operative Agreements) or release the Lessee from its obligations under this Section 12.4; provided that any action taken pursuant Operative Agreement or otherwise alter any payment obligations of the Lessee to the second paragraph of this Section 12.4 shall not be effective as against Lessor or any Hedge Provider under the Defaulting HolderOperative Agreements.
Appears in 1 contract
Samples: Participation Agreement (Human Genome Sciences Inc)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic DocumentOperative Agreement); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document Operative Agreement in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time matter and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall remain, respecting such second Operative Agreement, in its original form without regard to any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (acting as to the extent such Credit Party is a Financing Party) have any right party to consent or to withhold consent with regard to any matter concerning any such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or any Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 12.5 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.412.5; provided that any action taken pursuant to the second paragraph of this Section 12.4 12.5 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.412.5; provided that any action taken pursuant to the second paragraph of this Section 12.4 12.5 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties Parties, the Agent and each Credit Party (to the extent such Credit Party is a party to such Basic Document); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the any scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of of, or release, any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such Lender or Holder, reduce any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as the case may be) under the this Participation Agreement, extend the scheduled date of payment of any Lender Unused Commitment Fees or any Holder Unused Commitment Fees payable to such Lender or Holder (as the case may be), fund any Advance referenced in Section 2.1 of the Construction Agency Agreement in excess of the then current aggregate sum of the Available Commitments and the Available Holder Commitments, modify the provisions of Section 2.10 of the Credit Agreement, elect to decline the funding of any Transaction Expense with respect to Sections 7.1(a) or 7.1(b), elect to decline the funding of any indemnity payment by the Owner Trustee with respect to Section 11.8 or increase the amount or extend the expiration date of such Lender's Commitment or the Holder Commitment of such HolderHolder (pursuant to a Commitment Increase Request or otherwise), or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce change the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit AgreementAgreement (which shall also require the consent of the Agent), or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Construction Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.the
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII X of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party the Lessee (to the extent such Credit Party Lessee is a party to such Basic Document); providedOperative Agreement, and to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which Lessee is not a Basic Document party to such Operative Agreement but is expressly accorded rights in a particular provision therein, such provision may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto Majority Secured Parties and (without the consent of any other Financing Party) the AgentLessee). In addition, the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected by such matter. At no time shall any Credit Party (acting as a Financing Party) have any right to consent or to withhold consent with regard to any matter concerning any Operative Agreement.
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of or release any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable elect to such Lender or Holder (as decline the case may be) under the Participation Agreement, extend the scheduled date of payment funding of any Lender Unused Fees Transaction Expense with respect to SECTION 7, elect to decline the funding of any indemnity payment by the Trust with respect to SECTION 11.8 or any Holder Unused Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, ; or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 SECTION 13.4 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee Trust of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8SECTION 9.5) or release any Credit Party Lessee from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party Lessee to the Lessor or any Financing Party under the Operative Agreements, ; or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 9.1 of the Credit Agreement, or Agreement (iv) permit Advances for Work in excess which shall also require the consent of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent). Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority LendersAgent, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", ," shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.4SECTION 13.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 SECTION 13.4 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", ," shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4SECTION 13.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 SECTION 13.4 shall not be effective as against the Defaulting Holder.
Appears in 1 contract
TERMINATIONS, AMENDMENTS, WAIVERS, ETC. UNANIMOUS VOTE ------------------------------------------------------- MATTERS. ------- Each Basic Document Operative Agreement may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent such Credit Party is a party to such Basic DocumentOperative Agreement); provided, to the extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall not amend, supplement, waive or modify any provision of any Basic Document in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to be unreasonably withheld or delayed) of such Credit Party. Each Operative Agreement which is not a Basic Document may be terminated, amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and (without the consent of any other Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall require the consent of each Lender and each Holder affected and (b) any provision of any Operative Agreement incorporated by reference or otherwise referenced in a second Operative Agreement shall remain, respecting such matter. At no time shall second Operative Agreement, in its original form without regard to any such termination, amendment, supplement, waiver or modification in the first Operative Agreement except if such has been agreed to by an instrument in writing signed by, subject to Article VIII of the Trust Agreement regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (acting as to the extent such Credit Party is a Financing Party) have any right party to consent or to withhold consent with regard to any matter concerning any such Operative Agreement).
(i) reduce the Lender Commitments and/or the Holder Commitments (except for a pro-rata reduction in each such commitment amount of the Lenders and the Holders any Note or as otherwise provided in Section 2.5 of the Credit Agreement and Section 3.1(e) of the Trust Agreement)any Certificate, extend the scheduled date of maturity of any Note, extend the scheduled Expiration Date, extend the Construction Period Termination Date, extend any payment date of any Note or Certificate, reduce the stated rate of interest payable on any Note, reduce the stated Holder Yield payable on any Certificate (other than as a result of waiving the applicability of any post-default increase in interest rates or Holder Yields), modify the priority of any Lien in favor of the Agent under any Security Document, subordinate any obligation owed to such any Lender or Holder, reduce any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as the case may be) under the Participation Agreement, extend the scheduled date of payment of any Lender Unused Facility Fees or any Holder Unused Facility Fees payable to such Lender or Holder (as increase the case may be) amount or extend the expiration date of such any Lender's Commitment or the Holder Commitment of such any Holder, or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 12.5 or reduce the percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any Credit Party from its obligations under any Operative Agreement or otherwise alter any payment obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii) terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement, or (iv) permit Advances for Work in excess of the Construction Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency Agreement requiring that the Construction Agent pay certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent. Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each party to this Agreement shall be restored to its former position and rights under the Operative Agreements, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. The parties to this Agreement agree that any increase in the Lender Commitments and/or any increase in the Holder Commitments shall be a matter decided by the Majority Secured Parties and not as a Unanimous Vote Matter; provided, however, no individual Lender's Commitment nor any Holder's Holder Commitment shall be increased without such party's express consent, in each such party's sole discretion. If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan (any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans, shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured Parties, and shall have no rights under this Section 12.412.5; provided that any action taken pursuant to the second paragraph of this Section 12.4 12.5 shall not be effective as against the Defaulting Lender. If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue, the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
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