Limited Waivers At the request of the Borrowers and the Guarantors the Administrative Agent and the Lenders hereby waive on a temporary basis, expiring on the Termination Date, the following Specified Events of Defaults:
(a) Any failure by the Borrowers to comply with Section 6.03(a) of the Credit Agreement requiring the Borrowers to provide prompt notice of the occurrence of any Default in regards to the Specified Events of Default, which events shall include any occurrence during the Temporary Waiver Period of those events set forth on Schedule I hereto, is hereby waived (and any breach of a representation or warranty related to the Specified Events of Default is hereby similarly waived).
(b) Any failure by the Borrowers to comply with Section 6.03(b) of the Credit Agreement requiring the Borrowers to provide prompt notice upon the occurrence of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, is hereby waived (and any related existing breach of a representation or warranty is hereby similarly waived) insofar as, and only insofar as, such failure to provide notice (i) related to the non-renewal of the Cenovus Services Agreement and the Xxxxxx Services Agreement, and (ii) any occurrence during the Temporary Waiver Period of the events set forth on Schedule II hereto (and any existing breach of a representation or warranty related to (i) and (ii) above).
(c) Any Event of Default pursuant to Section 8.01(g) of the Credit Agreement resulting from the Borrowers’ admission that they would become unable to pay their debts as they generally become due is hereby waived (and any related breach of a representation or warranty is hereby similarly waived), and to the extent any forecasting by the Loan Parties during the Temporary Waiver Period evidences the Borrowers’ inability to pay debts as they come due and owing or insolvency, any Default or Event of Default arising therefrom is waived. The Temporary Waiver in this Section 4 is effective only in respect of those Specified Events of Default, and except as expressly set forth in this Agreement, no other waivers, amendments or modifications are intended or made by this Agreement. No failure or delay on the part of the Administrative Agent, or any Lender in exercising any power or right under the Credit Agreement or any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No waiver or approval by the Administrative Agent or any Lender under this Agreement, the Credit Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to any subsequent transaction or any Default or Event of Default under any Loan Document. Notwithstanding any language herein to the contrary, nothing herein is intended to nor shall waive (temporary or otherwise) or otherwise release the Borrowers or Guarantors from any other Event of Default under any Loan Document that is not a Specified Event of Default. Similarly, notwithstanding any language herein to the contrary, nothing herein is intended to nor shall release the Borrowers or Guarantors from any Specified Event of Default, except for such Temporary Waiver as specified herein. Further, any post-default interest payable at the Default Rate resulting from the Specified Events of Default which would otherwise apply, is hereby waived for the Specified Events of Default for the duration of the Temporary Waiver Period, unless (i) a Default or Event of Default other than the Specified Events of Default occurs or has occurred, or, (ii) following the Termination Date, the Administrative Agent elects in its sole discretion (or is otherwise directed by the Required Lenders), to assess post-default interest at the Default Rate in accordance with the Credit Agreement and so notifies the Borrowers.
Limited Waiver 3.1 Solely during the Waiver Period (as defined below) and not at any other time, the Lenders hereby agree to temporarily waive the Anticipated Defaults and the right to accelerate the Obligations as a result thereof. During the Waiver Period, the Anticipated Defaults shall be deemed not to have occurred or be continuing, and the Administrative Agent and the Lenders shall have no right to enforce rights or exercise remedies with respect to the Anticipated Defaults. The waivers provided pursuant to the terms of this Agreement shall automatically and without further action or notice by any party expire on the Limited Waiver Termination Date (as defined below).
3.2 No waiver provided herein shall remain in effect after the Limited Waiver Termination Date. Upon the Limited Waiver Termination Date, the Anticipated Defaults shall be deemed to be Events of Default in full force and effect, having occurred as of September 30, 2012 and continuing uninterrupted thereafter for all purposes, including, without limitation, for purposes of calculating and charging default interest under Section 2.9(c) of the Credit Agreement, and the Administrative Agent and the Lenders shall retain all of the rights and remedies related thereto. This Agreement shall not have the effect of tolling or extending any applicable cure period beyond the period that would have applied absent this Agreement. Nothing in this Agreement shall be deemed to constitute a waiver by the Administrative Agent or the Lenders of any Default, whether now existing or hereafter arising, or of any right or remedy the Administrative Agent or the Lenders may have under any of the Loan Documents or applicable law, except to the extent expressly set forth herein, nor shall the Lenders’ execution and delivery of this Agreement establish a course of dealing among the Lenders and the Borrower or in any way obligate the Lenders to hereafter provide any further waiver of any kind, to provide any further time prior to the enforcement of their rights or to provide any other financial accommodations to or on behalf of the Borrower or any other Loan Party.
3.3 Notwithstanding anything to the contrary herein, the Lenders do not now waive, nor do they agree that they will waive in the future, any further Default or Event of Default. Neither this Agreement nor any course of dealing or delay or failure of the Lenders in exercising any right, remedy, power or privilege under or in connection with any Event of Default shall affect any other or future exercise thereof or the existence of any other right, remedy, power or privilege, except to the extent expressly set forth herein; nor shall any single or partial exercise of any such right, remedy, power or privilege or any abandonment or discontinuance of the steps to enforce any such right, remedy, power or privilege (pursuant to this Agreement or otherwise) preclude any further exercise thereof or of any other right, remedy, power or privilege, except to the extent expressly set forth herein. For the purposes hereof,
Amendment of Agreement This Agreement may be amended only by written agreement of the Adviser and the Sub-Adviser and only in accordance with the provisions of the 1940 Act and the rules and regulations promulgated thereunder.
Severability; Waiver; and Survival (a) If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired.
(b) Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced.
(c) The parties’ rights, protections, and remedies under this Agreement shall survive its termination.
Amendment; Waivers This Agreement may not be modified, amended, waived or discharged in any manner except by an instrument in writing signed by both parties hereto. The waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
Amendment of Agreement and Certificate of Limited Partnership For the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment of Exhibit A) and, if required by law, shall prepare and file an amendment to the Certificate and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 hereof.
Amendment and Waivers Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party to be bound thereby. The waiver by a party of any breach hereof for default in payment of any amount due hereunder or default in the performance hereof shall not be deemed to constitute a waiver of any other default or any succeeding breach or default.
Amendment, Waiver, etc Except as expressly provided herein, neither this Warrant nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought; provided, however, that any provision hereof may be amended, waived, discharged or terminated upon the written consent of the Company and the Majority of the Holders and such amendment, waiver, discharge or termination shall be effective with respect to the Company and all Holders.
STATEMENT OF AGREEMENT The parties hereby acknowledge the accuracy of the foregoing Background Information and hereby agree as follows:
Amendment; Waivers, etc No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.
