Common use of Waiver, Modification and Amendment Clause in Contracts

Waiver, Modification and Amendment. 6.1.1 directly or indirectly enter into, amend, modify, terminate (except in accordance with its terms), supplement or waive a right or permit or consent to the amendment, modification, termination (except in accordance with its terms), supplement or waiver of any of the provisions of, or give any consent under (a) any Permit, the effect of which could reasonably be expected to have a Material Adverse Effect, (b) the Bylaws, Articles of Incorporation, Certificates of Formation or Operating Agreements of any Loan Parties, (c) the Construction Guaranty or any Payment and Performance Bond (i) without obtaining the Bank Agent's prior written consent, (ii) without obtaining the FF&E Lender's prior written consent and (iii) if such amendment, modification, termination, supplement or waiver is not permitted under Section 4.28 and 4.29 of the Second Mortgage Notes Indenture, without obtaining (A) the consent of a majority in principal amount of the holders of the Second Mortgage Notes or (B) if the Second Mortgage Notes are then rated CCC+ or higher by S&P, a confirmation from the Rating Agencies that such amendment, waiver or other modification will not result in a Rating Downgrade (provided that the Loan Parties may amend, modify, terminate, supplement or waive any provision under (or provide a consent under) any document described in clauses (b) or (c) above if such amendment, modification, termination, supplement, waiver or consent (x) has no adverse effect on the Loan Parties or any Lender and (y) does not relate to any of the substantive non-consolidation related provisions in the organizational documents of the Loan Parties), or (d) any other Contract unless it could not reasonably be expected to have a Material Adverse Effect, and then only in accordance with the procedures set forth in Section 6.1.2 or Section 6.1.3, as applicable, below (provided that the same shall not relieve the Company of the requirements of Section 6.2). Notwithstanding any of the foregoing, the Company may: 6.1.2 enter into Contracts consistent with the Plans and Specifications, the Project Schedule and the Project Budget, as each is in effect from time to time. Each such Contract shall be in writing and shall become effective when and only when: (i) the Company and the Contractor have executed and delivered the Contract (or, in the case of any purchase orders, such purchase order shall have otherwise become enforceable against the Company and the Contractor thereunder) (with the effectiveness thereof subject only to satisfaction of the conditions in clauses (ii), (iii), (iv), (v) and (vi) below); (ii) for Contracts constituting Material Project Documents, the Company has submitted to the Disbursement Agent an Additional Contract Certificate together with all exhibits, attachments and certificates required thereby (including the Construction Consultant's Certificate), each duly completed and executed; (iii) if entering into such Contract will result in an amendment to the Project Budget, the Company has complied with the requirements of Section 6.4; (iv) if entering into such Contract will have the effect of a Scope Change, the Company has complied with the provisions of Section 6.2; (v) if entering into such Contract will cause the Project not to be In Balance, the Company has complied with the requirements of Section 5.8.3; (vi) if a Payment and Performance Bond is required under Section 5.14 with respect to such Contract, the Company shall have obtained or delivered such Payment and Performance Bond to the Disbursement Agent and (vii) for contracts constituting Material Project Documents, the Disbursement Agent has acknowledged receipt of the materials referenced in clause (ii) above, as contemplated in the Additional Contract Certificate (which the Disbursement Agent agrees to promptly do upon receipt of said material); 6.1.3 from time to time, amend any Contracts. Any such amendment shall be in writing and shall identify with particularity all changes being made. Each such amendment shall be effective when and only when: (i) the Company and other Contractor have executed and delivered the contract amendment (or, in the case of any amendment to a purchase order, such amendment shall have otherwise become enforceable against the Company and the Contractor thereunder) (with the effectiveness thereof subject only to satisfaction of the conditions in clauses (ii), (iii), (iv), (v) and (vi) below); (ii) for Contracts constituting Material Project Documents, the Company has submitted to the Disbursement Agent a Contract Amendment Certificate together with all exhibits, attachments and certificates required thereby each duly completed and executed; (iii) if such amendment will result in an amendment to the Project Budget, the Company has complied with the requirements of Section 6.4; (iv) if such amendment will have the effect of a Scope Change, the Company has complied with the provisions of Section 6.2; (v) if such amendment will cause the Project not to be In Balance, the Company has complied with the requirements of Section 5.8.3; (vi) if a Payment and Performance Bond is required under Section 5.14 with respect to such Contract, the Company shall have obtained the written consent of the surety that issued such Payment and Performance Bond to such amendment and delivered such consent to the Disbursement Agent with a copy to the Construction Consultant; and (vii) for Contracts constituting Material Project Documents, the Disbursement Agent has acknowledged its receipt of the materials referenced in clause (ii) and (vi) above, as contemplated in the Contract Amendment Certificate (which the Disbursement Agent agrees to promptly do upon receipt of said materials).

Waiver, Modification and Amendment. 6.1.1 directly or indirectly enter into, amend, modify, terminate (except in accordance with its terms), supplement or waive a right or permit or consent to the amendment, modification, termination (except in accordance with its terms), supplement or waiver of any of the provisions of, or give any consent under (a) any Permit, the effect of which could reasonably be expected to have a Material Adverse Effect, (b) the Bylaws, Articles of Incorporation, Certificates of Formation or Operating Agreements of any Loan PartiesParties (except as contemplated by Section 3.3.32 hereof), (c) the Construction Guaranty or any Payment and Performance Bond (i) without obtaining the Bank Agent's prior written consent, (ii) without obtaining the FF&E Lender's prior written consent and (iii) if such amendment, modification, termination, supplement or waiver is not permitted under Section Sections 4.28 and 4.29 of the Second Mortgage Notes Indenture, without obtaining (A) the consent of a majority in principal amount of the holders of the Second Mortgage Notes or (B) if the Second Mortgage Notes are then rated CCC+ or higher by S&P, a confirmation from the Rating Agencies that such amendment, waiver or other modification will not result in a Rating Downgrade (provided that the Loan Parties may amend, modify, terminate, supplement or waive any provision under (or provide a consent under) any document described in clauses (b) or (c) above if such amendment, modification, termination, supplement, waiver or consent (x) has no adverse effect on the Loan Parties or any Lender and (y) does not relate to any of the substantive non-consolidation related provisions in the organizational documents of the Loan Parties), or (d) any other Contract unless it could not reasonably be expected to have a Material Adverse Effect, and then only in accordance with the procedures set forth in Section 6.1.2 or Section 6.1.3, as applicable, below (provided that the same shall not relieve the Company of the requirements of Section 6.2). Notwithstanding any of the foregoing, the Company may: 6.1.2 enter into Contracts consistent with the Final Plans and Specifications, the Project Schedule and the Project Budget, as each is in effect from time to time. Each such Contract shall be in writing and shall become effective when and only when: (i) the Company and the Contractor have executed and delivered the Contract (or, in the case of any purchase orders, such purchase order shall have otherwise become enforceable against the Company and the Contractor thereunder) (with the effectiveness thereof subject only to satisfaction of the conditions in clauses (ii), (iii), (iv), (v) and (vi) below); (ii) for Contracts constituting Material Project Documents, the Company has submitted to the Disbursement Agent an Additional Contract Certificate together with all exhibits, attachments and certificates required thereby (including the Construction Consultant's Certificate), each duly completed and executed; (iii) if entering into such Contract will result in an amendment to the Project Budget, the Company has complied with the requirements of Section 6.4; (iv) if entering into such Contract will have the effect of a Scope Change, the Company has complied with the provisions of Section 6.2; (v) if entering into such Contract will cause the Project not to fail to be In Balance, the Company has complied with the requirements of Section 5.8.3; (vi) if a Payment and Performance Bond is required under Section 5.14 with respect to such Contract, the Company shall have obtained or and delivered such Payment and Performance Bond to the Disbursement Agent within the time period required under Section 5.14 and (vii) for contracts constituting Material Project Documents, the Disbursement Agent has acknowledged receipt of the materials referenced in clause (ii) above, as contemplated in the Additional Contract Certificate (which the Disbursement Agent agrees to promptly do upon receipt of said material); 6.1.3 from time to time, amend any Contracts. Any such amendment shall be in writing and shall identify with particularity all changes being made. Each such amendment shall be effective when and only when: (i) the Company and other Contractor have executed and delivered the contract amendment (or, in the case of any amendment to a purchase order, such amendment shall have otherwise become enforceable against the Company and the Contractor thereunder) (with the effectiveness thereof subject only to satisfaction of the conditions in clauses (ii), (iii), (iv), (v) and (vi) below); (ii) for Contracts constituting Material Project Documents, the Company has submitted to the Disbursement Agent a Contract Amendment Certificate together with all exhibits, attachments and certificates required thereby each duly completed and executed; (iii) if such amendment will result in an amendment to the Project Budget, the Company has complied with the requirements of Section 6.4; (iv) if such amendment will have the effect of a Scope Change, the Company has complied with the provisions of Section 6.2; (v) if such amendment will cause the Project not to fail to be In Balance, the Company has complied with the requirements of Section 5.8.3; (vi) if a Payment and Performance Bond is required under Section 5.14 with respect to such ContractContract after giving effect to the amendment, the Company shall have obtained the written consent of the surety that issued such Payment and Performance Bond to such amendment and delivered such consent to the Disbursement Agent with a copy to the Construction Consultant; and (vii) for Contracts constituting Material Project Documents, the Disbursement Agent has acknowledged its receipt of the materials referenced in clause (ii) and (vi) above, as contemplated in the Contract Amendment Certificate (which the Disbursement Agent agrees to promptly do upon receipt of said materials).