Common use of Waivers; Amendment and Assignment Clause in Contracts

Waivers; Amendment and Assignment. (a) No provision of this Agreement may be amended or waived except in writing executed by all of the parties to this Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof shall be binding upon, and shall inure to the benefit of the undersigned parties and their respective heirs, executors, administrators, representatives, successors and permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other Person with any interest in or liability under any of the Loans) shall have any rights or remedies under or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned without the express prior written consent of the Initial Member and any attempted assignment without such consent shall be void ab initio. (b) Notwithstanding anything to contrary contained elsewhere in this Agreement (including the foregoing Section 8.4(a)) or in any Ancillary Document, in order to facilitate the possible restructuring and sale of the Purchase Money Notes, the FDIC, without the consent of the Private Owner or the Company, may at any time that the FDIC is the holder of 100 percent of any Purchase Money Note or beneficial interest therein cause the Company to replace or reissue such Purchase Money Note (or any promissory note reissued in respect thereof) and make related changes, modifications or amendments to this Agreement and the Ancillary Documents as permitted therein; provided, however, that (i) (A) the maturity date of such replacement or reissued Purchase Money Note shall not be later than the seventh anniversary of the Closing Date and (B) the outstanding principal amount of such replacement or reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid to the Holders of such Purchase Money Note pursuant to Section 3.3 and (ii) no modification contained in such replacement or reissued Purchase Money Note shall adversely affect in any material respect (A) the amount or timing of any payments or distributions to the Private Owner or any permitted successor or assign pursuant to the Priority of Payments, (B) any other rights or obligations of, or the need for any advances, contributions or payments from, the Private Owner or its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary Document or otherwise or (C) the rights or interests of any Holder of any other Purchase Money Notes or any owner of an interest therein. Prior to effecting any such changes, amendments or modifications, the FDIC shall notify each of the Private Owner and the Company of any such contemplated changes, amendments or modifications, and the Private Owner and the Company agree that they will cooperate in good faith with the FDIC in effecting all such changes, amendments or modifications.

Appears in 3 contracts

Samples: Loan Contribution and Sale Agreement, Loan Contribution and Sale Agreement, Loan Contribution and Sale Agreement

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Waivers; Amendment and Assignment. (a) No provision of this Agreement may be amended or waived except in writing executed by all of the parties to this Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof shall be binding upon, and shall inure to the benefit of the undersigned parties and their respective heirs, executors, administrators, representatives, successors and permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other Person with any interest in or liability under any of the Loans) shall have any rights or remedies under or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned without the express prior written consent of the Initial Member and any attempted assignment without such consent shall be void ab initio. (b) Notwithstanding anything to contrary contained elsewhere in this Agreement (including the foregoing Section 8.4(a)) or in any Ancillary Document, in order to facilitate the possible restructuring and sale of the Purchase Money Notes, the FDIC, without the consent of the Private Owner or the CompanyCompany or the holders of any other Purchase Money Note, may at any time that the FDIC is the holder of 100 percent of any Purchase Money Note or beneficial interest therein cause the Company to replace or reissue such Purchase Money Note (or any promissory note reissued in respect thereof) and make related changes, modifications or amendments to this Agreement and the Ancillary Transaction Documents as permitted therein; provided, however, that (i) (A) the maturity date of such replacement or reissued Purchase Money Note shall not be later than the seventh anniversary of the Closing Date and (B) the outstanding principal amount of such replacement or reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid to the Holders of such Purchase Money Note amounts on deposit pursuant to Section 3.3 of the Custodial and Paying Agency Agreement to pay such maturing Purchase Money Note (including the amount, if any, of any payments made pursuant to the Purchase Money Notes Guaranty); provided, however, for purposes of this clause (2), proceeds from reissued Purchase Money Notes deposited pursuant to Section 3.3 of the Custodial and Paying Agency Agreement shall not be included as amounts on deposit to pay such maturing Purchase Money Note and (ii) no modification contained in such replacement or reissued Purchase Money Note shall adversely affect in any material respect (A) the amount or timing of any payments or distributions to the Private Owner or any permitted successor or assign pursuant to the Priority of Payments, (B) any other rights or obligations of, or the need for any advances, contributions or payments from, the Private Owner or its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary Document or otherwise or (C) the rights or interests of any Holder of any other Purchase Money Notes or any owner of an interest therein. Prior to effecting any such changes, amendments or modifications, the FDIC shall notify each of the Private Owner and the Company of any such contemplated changes, amendments or modifications, and the Private Owner and the Company agree that they will cooperate in good faith with the FDIC in effecting all such changes, amendments or modifications.

Appears in 2 contracts

Samples: Loan Contribution and Sale Agreement, Loan Contribution and Sale Agreement

Waivers; Amendment and Assignment. (a) No provision of this Agreement may be amended or waived except in writing executed by all of the parties to this Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof shall set forth in this Agreement will be binding upon, and shall will inure to the benefit of of, the undersigned parties and their respective heirs, executors, administrators, representatives, successors and permitted assigns, and (except as specified in Section 7.2(f)) no other Person or Persons (including Borrowers or any co-lender or other Person with any interest in or liability under any of the LoansAssets) shall will have any rights or remedies under pursuant to or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned by the Company without the express prior written consent of the Initial Member Transferor, and any attempted assignment without such consent shall will be void ab initio. (bi) Notwithstanding anything Subject to the requirements and restrictions for the transfer of the Purchase Money Notes pursuant to the Custodian and Paying Agency Agreement (but otherwise any term of any Transaction Document to the contrary contained elsewhere notwithstanding), the FDIC may, without restriction, effect any number of FDIC Purchase Money Notes Dispositions. (ii) Each of the Company and the Private Owner agrees to cooperate in all respects with and assist, and the Private Owner agrees to cause the Company to cooperate in all respects with and assist, the FDIC in any actual or proposed FDIC Purchase Money Notes Disposition, including by, as and to the extent requested by the FDIC, (w) providing such information and documentation as may be reasonably requested by the FDIC, including such information and documentation as may be necessary or advisable for compliance with the Securities Act, the Exchange Act, the Investment Company Act and other applicable Laws (as determined in good faith by the FDIC), or as would be otherwise customarily provided in connection with the issuance or sale of securities similar to the Purchase Money Notes, (x) entering into an indenture, fiscal and paying agent agreement or other similar agreement, and other agreements, with respect to the Purchase Money Notes or the FDIC Purchase Money Notes Disposition, satisfactory to the FDIC, (y) causing legal counsel for each of the Company and the Private Owner to issue such legal opinions as may reasonably be requested or as would be otherwise customarily provided in connection with the issuance or sale of securities similar to the Purchase Money Notes and (z) providing certificates and other closing documents, in form and substance satisfactory to the FDIC. (iii) Each of the Company and the Private Owner must cooperate in all respects with and assist, and the Private Owner agrees to cause the Company to cooperate in all respects with and assist, the FDIC to effect any amendments or modifications to the Transaction Documents (including this Agreement and the Purchase Money Notes) that the FDIC may request from time to time in connection with any actual or proposed FDIC Purchase Money Notes Disposition, including to increase or decrease the aggregate outstanding principal amount of any Class of Purchase Money Notes that is FDIC-Owned (with an appropriate corresponding decrease or increase in the aggregate outstanding principal amount of another Class of Purchase Money Notes that is FDIC-Owned) or to increase or decrease the Applicable Interest Rate of any Class of Purchase Money Notes (with an appropriate corresponding increase or decrease in the Applicable Interest Rate or the aggregate outstanding principal amount of such, or another, Class of Purchase Money Notes that is FDIC-Owned, as applicable), provided that no such amendment or modification will increase the aggregate outstanding principal amount of such Class of Purchase Money Notes (except as expressly provided above). (iv) Any terms of this Agreement or any other Transaction Document to the contrary notwithstanding, the Transferor may, at any time or from time to time provide, or arrange for the provision by any Person of, a guaranty with respect to any Class of Purchase Money Notes, substantially in the form of Attachment M hereto (or substantially in such form except for such changes thereto as do not materially adversely affect the Company). If requested by the Transferor, the Company forthwith must (and the Private Owner must cause the Company forthwith to) execute and deliver the acknowledgement in respect of each Purchase Money Notes Guaranty contemplated by the form of guaranty set forth in Attachment M hereto. (v) At the request of the FDIC at any time or from time to time (whether or not in connection with any proposed FDIC Purchase Money Notes Disposition), the Company must, at its own expense (which will be a Pre-Approved Charge), use its best efforts to, as promptly as practicable after such request of the FDIC, make any Class of Purchase Money Notes that is FDIC-Owned DTC Eligible (which efforts will include making any amendments to, or exchanges of, the Transaction Documents (including the foregoing Purchase Money Notes), executing any Letter of Representations or other documentation required by the DTC, and securing CUSIP and ISIN numbers for such Class of Purchase Money Notes, in each case to the extent requested by the FDIC). (c) In addition to (and not in limitation of) the rights of the FDIC under Section 8.4(a)7.2(b) or in above and the rights of any Ancillary DocumentPurchase Money Notes Guarantor under Section 5 of Annex I to the Custodial and Paying Agency Agreement, in order to facilitate the possible facilitate, or in connection with or in contemplation of, any restructuring and sale of the Purchase Money Notes, any FDIC Purchase Money Notes Disposition (or any reissuance, restructuring or sale of any promissory notes to be issued pursuant to Section 5 of Annex I to the Custodial and Paying Agency Agreement) or the delivery of any Purchase Money Notes Guaranty, the FDIC, without the consent of the Private Owner Owner, the Initial Member, the Company or the Companyany Holder, may may, at any time (and from time to time) that the FDIC is the holder any Class of 100 percent of any Purchase Money Note or beneficial interest therein cause Notes is FDIC-Owned, require the Company to (i) replace or reissue such Class of Purchase Money Note (Notes with another class or classes of promissory notes, or otherwise reissue one or more of any promissory note reissued such Classes of Purchase Money Notes, including in respect thereofeach case to have maturity date(s) and principal amount(s) that are different from those of such Class or Classes of Purchase Money Notes prior to such replacement or reissuance, (ii) make related changes, modifications or amendments to this Agreement Agreement, such replacement or reissued promissory notes and the Ancillary Transaction Documents (and the Company must comply with any such requirement), and (iii) establish and maintain a defeasance account with the Paying Agent to be used for payments in respect of any or all of the Purchase Money Notes, including any related changes to the Transaction Documents, in each case as permitted therein; provided, however, that (i) (A) determined by the maturity date FDIC. Any such class of replacement or reissued promissory notes will be considered to constitute a “Class” of “Purchase Money Notes” for all purposes of the Transaction Documents. The aggregate outstanding principal amount of all such replacement or reissued Purchase Money Note shall not Notes at the time of their original issuance or reissuance, as the case may be, pursuant to this Section 7.2(c) must be later than equal to the seventh anniversary of the Closing Date and (B) the aggregate outstanding principal amount of all Classes of Purchase Money Notes so being replaced and/or reissued immediately prior to such replacement and/or reissuance. (d) The maturity date of any amended, replacement or reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid Notes pursuant to this Section 7.2 will not be later than, and prior to the Holders of such Purchase Money Note Guaranty Issuance Date will be, December 14, 2028. No change, amendment or modification to the Transaction Documents pursuant to this Section 3.3 7.2 (disregarding, for the avoidance of doubt, the maturity dates and (ii) no modification contained in principal amounts of any such amended, replacement or reissued Purchase Money Note shall Notes) may adversely affect in any material respect (A) the amount or timing of any payments or distributions to the Initial Member or the Private Owner or any permitted successor or assign pursuant to the Priority of Payments, (B) Payments or any other direct rights or obligations of, or the need for any direct advances, contributions or payments from, the Private Owner or its Affiliates the Initial Member pursuant to any Transaction Document, in each case unless such adversely affected Private Owner or Initial Member, as applicable, consents to the applicable provisions resulting in such adverse effect; and the existence or non-existence of a Purchase Money Notes Trigger Event will be determined disregarding any permitted successor or assign change pursuant to this Agreement Section 7.2 to maturity dates or principal amounts in connection with any Ancillary Document replacement or otherwise reissuance of Purchase Money Notes. Any change, amendment or (C) modification to the rights or interests Transaction Documents pursuant to this Section 7.2 at a time when any of any Holder of any other the Purchase Money Notes or any owner are not FDIC-Owned will require the consent of an interest thereinthe Required PMN Consenting Parties. Prior to effecting any such changes, amendments or modificationsmodifications to the Transaction Documents pursuant to this Section 7.2, the FDIC shall will notify each of the Private Owner and the Company of any such contemplated changes, amendments or modifications. For the avoidance of doubt, nothing in this Section 7.2(d) (i) applies to any amendment or modification of the definition of the term “Required PMN Consenting Parties” in accordance with the definition of such term (it being understood and agreed that the Required PMN Consenting Parties have absolute discretion to modify such term in any manner it desires in connection with any such Purchase Money Notes Disposition (or otherwise)) or (ii) modifies or qualifies the last sentence of Section 12.1 of the Reimbursement, Security and Guaranty Agreement. The Company and the Private Owner must cooperate in all respects with and assist (and the Private Owner agrees to cause the Company agree that they will to cooperate in good faith all respects with and assist) the FDIC in effecting all such replacements and reissuances of Purchase Money Notes, and all changes, amendments or modificationsmodifications therein and to the other Transaction Documents, required by the FDIC pursuant to this Section 7.2, including causing legal counsel for the Company to issue such legal opinions as may reasonably be requested or required in connection therewith. The issuance of any amended, replacement or reissued Purchase Money Notes as described in this Section 7.2(c) will be at the cost and expense of the Company and any such cost and expense will be deemed a Pre-Approved Charge. For the avoidance of doubt, any applicable fees of the Custodian in connection with additional reporting required by the FDIC pursuant to this Section 7.2 will be considered as part of fees of the Custodian to be paid by the Company pursuant to the Custodial and Paying Agency Agreement. (e) The terms of Sections 7.2(b) and (c) above, and Section 7.2(f) below, will apply notwithstanding anything to the contrary contained elsewhere in this Agreement (including Section 7.2(a) or in any other Transaction Document). (f) Each of the FDIC, each Purchase Money Notes Guarantor and the PMN Agent is hereby constituted an express third party beneficiary of this Agreement with respect to any provisions of this Agreement which expressly grant rights or benefits to such Person (including, in the case of the FDIC and each Purchase Money Notes Guarantor, the foregoing provisions of this Section 7.2) in accordance with Section 2.1(p) of the Common Terms. (g) Notwithstanding the foregoing, in no event will the FDIC structure any FDIC Purchase Money Notes Disposition, or the Company be required to make any change, amendment or modification to the Transaction Documents pursuant to this Section 7.2 or similar rights of the FDIC under any other provision in the Transaction Documents (including as to maturity dates or principal amounts of any amended, replacement or reissued Purchase Money Notes), in a manner that would be expected by the Initial Member, based on the advice of tax counsel, to result in the Company being treated as a “taxable mortgage pool,” as such term is defined in Section 7701(i)(2) of the Code.

Appears in 1 contract

Samples: Asset Transfer Agreement

Waivers; Amendment and Assignment. (a) No provision of this Agreement may be amended or waived except in writing executed by all of the parties to this Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof set forth in this Agreement shall be binding upon, and shall inure to the benefit of of, the undersigned parties and their respective heirs, executors, administrators, representatives, successors and permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other Person with any interest in or liability under any of the Loans) shall have any rights or remedies under pursuant to or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned without the express prior written consent of the Initial Member Member, and any attempted assignment without such consent shall be void ab initio. (b) Notwithstanding anything to the contrary contained elsewhere in this Agreement (including the foregoing Section 8.4(a)) or in any Ancillary Transaction Document, in order to facilitate the possible restructuring and or sale of the Purchase Money Notes, the FDIC, without the consent of the Private Owner Owner, the Company or the CompanyHolders of any other Purchase Money Note, may at any time that the FDIC is the holder Holder or Note Owner of 100 percent of any Purchase Money Note or beneficial interest therein and from time to time cause the Company to replace or reissue such Purchase Money Note (or any promissory note reissued in respect thereof) and make related changes, modifications or amendments to this Agreement and the Ancillary Transaction Documents as permitted therein; provided. (c) Further notwithstanding anything to the contrary contained elsewhere in this Agreement (including the foregoing Sections 8.4(a) and (b)) or in any Transaction Document, however, that (i) (A) the maturity date of such replacement or reissued Initial NGPMN Holder shall have the right to Convert any Non-Guaranteed Purchase Money Note shall not be later than the seventh anniversary from time to time, in whole or in part, into one or more Converted Guaranteed Purchase Money Notes, all in accordance with Sections 2.8(b) and 2.19 of the Closing Date Custodial and (B) the outstanding principal amount of such replacement or reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid to the Holders of such Purchase Money Note pursuant to Section 3.3 and (ii) no modification contained in such replacement or reissued Purchase Money Note shall adversely affect in any material respect (A) the amount or timing of any payments or distributions to the Private Owner or any permitted successor or assign pursuant to the Priority of Payments, (B) any other rights or obligations of, or the need for any advances, contributions or payments from, the Private Owner or its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary Document or otherwise or (C) the rights or interests of any Holder of any other Purchase Money Notes or any owner of an interest therein. Prior to effecting any such changes, amendments or modifications, the FDIC shall notify each of the Private Owner and the Company of any such contemplated changes, amendments or modifications, and the Private Owner and the Company agree that they will cooperate in good faith with the FDIC in effecting all such changes, amendments or modificationsPaying Agency Agreement.

Appears in 1 contract

Samples: Asset Contribution and Sale Agreement

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Waivers; Amendment and Assignment. (a) No provision of this Agreement may be amended or waived except in writing executed by all of the parties to this Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof set forth in this Agreement shall be binding upon, and shall inure to the benefit of of, the undersigned parties and their respective heirs, executors, administrators, representatives, successors and permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other Person with any interest in or liability under any of the Loans) shall have any rights or remedies under pursuant to or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned without the express prior written consent of the Initial Member Member, and any attempted assignment without such consent shall be void ab initio. (b) Notwithstanding anything to the contrary contained elsewhere in this Agreement (including the foregoing Section 8.4(a)) or in any Ancillary Transaction Document, in order to facilitate the possible restructuring and or sale of the Purchase Money Notes, the FDIC, without the consent of the Private Owner Owner, the Company or the CompanyHolders of any other Purchase Money Note, may at any time that the FDIC is the holder Holder or Note Owner of 100 percent of any Purchase Money Note or beneficial interest therein in whole or in part and from time to time cause the Company to replace or reissue such Purchase Money Note (or any promissory note reissued in respect thereof) and make related changes, modifications or amendments to this Agreement and the Ancillary Transaction Documents as permitted therein; provided. In the event of any such replacement or reissuance of a Purchase Money Note, however, that (iI) (A) the maturity date of such replacement or reissued Purchase Money Note shall not be later than the seventh anniversary of the Closing Date and (B) the outstanding principal amount of such replacement or reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid to the Holders of such Purchase Money Note amounts on deposit pursuant to Section 3.3 of the Custodial and Paying Agency Agreement to pay such maturing Purchase Money Note (including the amount, if any, of any payments made pursuant to the Purchase Money Notes Guaranty) plus (3) an amount equal to 0.50% of the amount calculated pursuant to clause (1) and (ii2); provided, however, that for purposes of clause (2) above, proceeds from the reissued Purchase Money Notes deposited pursuant to Section 3.3 of the Custodial and Paying Agency Agreement shall not be included as amounts on deposit to pay such maturing Purchase Money Note; and (II) no modification contained in such replacement or reissued Purchase Money Note shall adversely affect in any material respect (A) shall affect adversely the amount or timing of any payments or distributions to the Private Owner or any permitted successor or assign pursuant to the Priority of Payments, Payments in the Custodial and Paying Agency Agreement or (B) shall affect adversely any other rights or obligations of, or the need for any advances, contributions or payments from, of the Private Owner or its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary Transaction Document or otherwise or (C) other than the rights or interests of any Holder of any other Purchase Money Notes or any owner of an interest thereinNotes), in each case unless the adversely affected Private Owner shall have consented to the applicable provisions resulting in such adverse effect. Prior to effecting any such changes, amendments or modifications, the FDIC shall notify each of the Private Owner and the Company of any such contemplated changes, amendments or modifications, and the Private Owner and the Company agree that they will cooperate in good faith with the FDIC in effecting all such changes, amendments or modifications. (c) Further notwithstanding anything to the contrary contained elsewhere in this Agreement (including the foregoing Sections 8.4(a) and (b)) or in any Transaction Document, the Initial NGPMN Holder shall have the right to Convert any Non-Guaranteed Purchase Money Note from time to time, in whole or in part, into one or more Converted Guaranteed Purchase Money Notes, all in accordance with Sections 2.8(b) and 2.19 of the Custodial and Paying Agency Agreement.

Appears in 1 contract

Samples: Asset Contribution and Sale Agreement

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