Other Exceptions. (a) Except for a Permitted Structural Adjustment, a Structural Adjustment by any Lender shall only require the prior consent of the Company and each Lender that is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is to increase the Commitments to an extent not otherwise permitted under this Agreement or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement (b) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder. (c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness). (d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents. (e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above. (f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver. (g) With the prior written consent of the Company, each individual Lender may waive its right to a prepayment (including by way of amendment or waiver to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents. (h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender. (i) Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement (j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company. (k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) such consent or agreement shall be deemed to have been received by the Agent and (iii) such consent or agreement shall, unless otherwise agreed or stipulated by the Company, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty to a sub-participation. (l) If and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above. (m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter. (n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party. (o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release. (p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement (q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders. (r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person). (s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request. (t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party. (u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company. (v) Notwithstanding anything in any Finance Document, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured Party.
Appears in 1 contract
Other Exceptions. (a) Except for a Permitted Structural Adjustment, a Structural Adjustment by any Lender shall only require the prior consent of the Company and each Lender that is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is to increase the Commitments to an extent not otherwise permitted under this Agreement or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement.
(b) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) an Additional Facility pursuant to Clause 2.2 (Additional Facilities) or any Permitted Indebtedness and/or Additional Facility Notice (other than the consent of the relevant Additional Facility Lender(s) or person(s) providing the Additional Facility or Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive its right to a prepayment (including by way of amendment or waiver to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
(i) Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by ▇L▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement.
(j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) such consent or agreement shall be deemed to have been received by the Agent and (iii) such consent or agreement shall, unless otherwise agreed or stipulated by the Company, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty to a sub-participation.
(l) If and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above.
(m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Additional Facilities and Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement.
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established as an Additional Facility or pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company.
(v) Notwithstanding anything in any Finance Document, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured Party.
Appears in 1 contract
Other Exceptions. In addition, a Receiving Party may, notwithstanding the obligations of Section 5.1, disclose Confidential Information:
(a) Except for a Permitted Structural Adjustment, a Structural Adjustment that the Receiving Party can establish by any Lender shall only require the prior consent of the Company clear and each Lender that convincing evidence is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is permitted to increase the Commitments to an extent not otherwise permitted under this Agreement or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement
(b) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered disclosed by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive its right Providing Party;
(b) that the Receiving Party can establish by clear and convincing evidence is required to a prepayment be disclosed by the Receiving Party to defend litigation or to comply with applicable laws or regulations (including by way without limitation disclosure obligations under applicable securities laws or the regulations of amendment any stock exchange or waiver NASDAQ), or in connection with filings with the FDA, the United States Patent and Trademark Office or other similar governmental agencies, provided that the Receiving Party provides prior written notice of such disclosure to the Providing Party and takes reasonable and lawful actions to avoid or minimize the degree of such disclosure; or
(c) concerning the existence and terms of this Agreement and the status of transactions described herein, under obligations of confidentiality, to the Receiving Party's existing and potential advisors, investors that are bona fide venture capital or institutional investors that make such investments for the potential financial return and not for strategic purposes (so long as such investor does not have more than $1 billion in world-wide pharmaceutical revenue in the most recently completed calendar year) and any Person considering to acquire Hybridon or a controlling interest in Hybridon (a "Potential Acquirer"). Notwithstanding the foregoing, Hybridon shall not make any such disclosure to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
Potential Acquirer (i) Any amendment or waiver until discussions with such Potential Acquirer progress to a stage at which relates only to the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ Potential Acquirer is engaged in comprehensive due diligence of Hybridon's business and which makes such provisions more restrictive for any Hybridon has a good faith belief that the consummation of the Lenders (including any amendment proposed acquisition has become reasonably likely to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement
(j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on occur and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) unless the Potential Acquirer has entered into a confidentiality agreement at least as strict as the provisions of this Section 5.2.2(c), designating Novartis as a third party beneficiary and prohibiting the Potential Acquirer from disclosing or using for its own purposes (other than evaluation of the proposed transaction with Hybridon) any such consent or agreement information. Hybridon shall be deemed notify Novartis in writing prior to have been received by the Agent and (iii) such consent or agreement shall, unless otherwise agreed or stipulated by the Company, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty to a sub-participation.
(l) If and only to the extent the Company agrees or stipulates disclosure pursuant to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above.
(m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (IncreaseSection 5.2.2(c), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate but shall not be included for required to disclose the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver identity of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities Potential Acquirer until after consummation or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent abandonment of the Company.
(v) Notwithstanding anything in any Finance Documenttransaction, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) which time Hybridon shall provide Novartis with a copy of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of confidentiality agreement executed by such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured PartyPotential Acquirer.
Appears in 1 contract
Sources: Research Collaboration and Option Agreement (Hybridon Inc)
Other Exceptions. (a) Except for An amendment or waiver which adversely affects the rights or obligations of the Agent, the Security Agent, any Ancillary Lender, or a Permitted Structural AdjustmentReference Bank (each in their capacity as such) may not be effected without the consent of the Agent, the Security Agent, that Ancillary Lender or that Reference Bank, as the case may be. This paragraph (a) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under Clause 39.5 (Super Majority Lender Matters) or another provision of the Finance Documents.
(b) Subject to the other provisions of this Clause 39 (Amendments and waivers), the Transaction Security Documents may be amended, varied, waived or modified with the agreement of the Company or the relevant Obligor and the Security Agent acting in accordance with the Intercreditor Agreement.
(c) A Structural Adjustment by any Lender shall only require the prior consent of the Company and each Lender that is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is to to:
(i) increase the Commitments Total Commitments; and
(ii) subject to an extent not otherwise permitted under this Agreement or paragraph (b) of Clause 2.2 (Incremental Facilities) to reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of of:
(A) the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement; and
(bB) (only to the extent that such Structural Adjustment is a matter specified in Clause 39.4 (Majority Super Senior Facility Lender Matters)), the Majority Super Senior Facility Lenders.
(d) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "“Structural Adjustment Amendment Agreement"”) executed and delivered by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "“Consenting Lenders"”). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, may without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b(d) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "“class" ” of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive in writing its right to a prepayment (including by way of amendment or waiver to any of the provisions) under this Agreement (including Clause 8 10 (Mandatory Prepayment)Prepayment and Cancellation) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
(i) Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement
(jf) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally unilaterally, in writing, waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(kg) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(h) Any term of the Finance Documents (other than any Ancillary Document or any Fee Letter) may be amended or waived by the Company and the Agent without the consent, sanction, authority or further confirmation of any other Party if that amendment or waiver is:
(i) to cure defects or omissions, resolve ambiguities or inconsistencies (including a manifest inconsistency between a term of a Transaction Security Document which is executed after the first date on which any of the Facilities are utilised and a provision of the Agreed Security Principles regarding the times and frequency for the delivery of notices, the extent of perfection and/or any other administrative matters not requiring the release of security or a change to the scope of the Charged Property) or reflect changes of a minor, technical or administrative nature;
(ii) consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment or waiver; or
(iii) otherwise for the benefit of all the Lenders as a class.
(i) Any Declared Default, Default, Event of Default, Major Event of Default, Margin Event of Default, Material Event of Default or Relevant Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 26.15 (Acceleration) or Clause 26.16 (Super Senior Acceleration) applicable to all Lenders may be revoked or, as the case may be, waived with the consent of the Majority Lenders (and, if applicable, the Majority Super Senior Facility Lenders) and any other Lender whose consent would have been required to waive the relevant provision breach of which has given rise to the relevant Declared Default, Default, Event of Default, Margin Event of Default, Major Event of Default, Material Event of Default or Relevant Event of Default.
(j) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of of:
(i) any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent; and
(ii) any other Replaced Finance Party and its applicable participation, (iwithout prejudice to paragraph (i) that above), on and from the date such Replaced Finance Party shall be deemed to have given its is replaced in accordance with the provisions of Clause 39.8 (Replacement of Lender), a consent or agreement to such request, (ii) such consent or agreement request shall be treated and deemed to have as having been made by such Finance Party and Replaced Finance Party and received by the Agent and (iiiunless otherwise agreed by the Company or stipulated by the relevant Lender), subject to paragraph (k) below, such consent or agreement shall, unless otherwise agreed or stipulated by the Company, shall from such time be irrevocable and binding on such Finance Party and Replaced Finance Party (as applicable) and any permitted assignee, transferee or counterparty to a sub-participation.
(lk) If and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, always have the right to change or revoke its their decision and subsequently deliver to the Agent a consent or agreement agreement, or rejection of, to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless Unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k(j) above.
(ml) No amendment Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Loan, Facility or class of a term Lenders and which does not materially and adversely affect the rights or interests of any Fee Letter Lenders in respect of other Loan, Facilities or other side letter another class of Lender shall only require the consent of the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming part of that affected class (as applicable) as if references in this paragraph (f) to “Majority Lenders”, “Majority Revolving Facility Lenders”, “Majority Super Senior Facility Lenders”, “Super Majority Lenders”, “Majority Lenders”, “Majority Revolving Facility Lenders” or “Lenders” were only to Lenders participating in that Loan, Facility or forming part of that affected class; and, if so elected, any Finance Party other than amendment, agreement, replacement or waiver relating to a Benchmark Rate Change; or any such person which is party document, supplement, proposal or request in connection with a Super Majority Lender Objection; or a Reference Rate Supplement shall be deemed only to such letter.
(n) Notwithstanding anything relate to rights and obligations applicable to the contraryspecific Loan and Facilities being amended, replaced or waived and shall not be deemed to materially and adversely affect the rights or interests of Lenders in respect of other Loan or Facilities by virtue of such amendments, replacements or waivers. This paragraph (l) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is pursuant to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Companyparagraph (a) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lendersabove.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company.
(v) Notwithstanding anything in any Finance Document, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured Party.
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Other Exceptions. (a) Except for An amendment or waiver which adversely affects the rights or obligations of the Agent, the Security Agent or a Permitted Structural AdjustmentReference Bank (each in their capacity as such) may not be effected without the consent of the Agent, the Security Agent or that Reference Bank, as the case may be. This paragraph (a) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under Clause 39.5 (Super Majority Noteholder Matters) or another provision of the Finance Documents.
(b) Subject to the other provisions of this Clause 39 (Amendments and waivers), the Transaction Security Documents may be amended, varied, waived or modified with the agreement of the Company or the relevant Obligor and the Security Agent acting in accordance with the Intercreditor Agreement.
(c) A Structural Adjustment by any Lender shall only require the prior consent of the Company and each Lender Noteholder that is participating in that Structural Adjustment and shall not require the consent of any other Lender Noteholder unless such Structural Adjustment is to to:
(i) increase the Commitments Total Commitments; and
(ii) subject to an extent not otherwise permitted under this Agreement or paragraph (b) of Clause 2.2 (Incremental Series) to reduce the tenor of any of the FacilitiesNotes, in which case, such Structural Adjustment shall also require the consent of of:
(A) the Majority Lenders Noteholders (including those Lenders Noteholders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement; and
(bB) (only to the extent that such Structural Adjustment is a matter specified in Clause 39.4 (Majority Super Senior Series Noteholder Matters)), the Majority Super Senior Series Noteholders.
(d) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "“Structural Adjustment Amendment Agreement"”) executed and delivered by the Company and each consenting Lender Noteholder in respect of the Permitted Structural Adjustment (the "“Consenting Lenders"Noteholders”). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender Noteholder as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, may without the consent of any Lender Noteholder other than the applicable Consenting LendersNoteholders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders Noteholders and the Company, to give effect to the provisions of this paragraph (b(d) including any amendments necessary to treat the applicable Loans Notes and/or Commitments of the Consenting Lenders Noteholders as a new "“class" ” of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender Noteholder may waive in writing its right to a prepayment redemption (including by way of amendment or waiver to any of the provisions) under this Agreement Clause 10.1 (including Clause 8 (Mandatory Prepayment)Exit) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
(i) Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement
(jf) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally unilaterally, in writing, waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(kg) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(h) Any term of the Finance Documents (other than any Fee Letter) may be amended or waived by the Company and the Agent without the consent, sanction, authority or further confirmation of any other Party if that amendment or waiver is:
(i) to cure defects or omissions, resolve ambiguities or inconsistencies (including a manifest inconsistency between a term of a Transaction Security Document which is executed after the first date on which any of the Series are issued and a provision of the Agreed Security Principles regarding the times and frequency for the delivery of notices, the extent of perfection and/or any other administrative matters not requiring the release of security or a change to the scope of the Charged Property) or reflect changes of a minor, technical or administrative nature;
(ii) consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release provided that such waiver or amendment does not adversely affect the interests of the other Noteholders whose consent is not required for the applicable amendment or waiver; or
(iii) otherwise for the benefit of all the Noteholders as a class.
(i) Any Declared Default, Default, Event of Default, Major Event of Default, Margin Event of Default, Material Event of Default or Relevant Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 26.15 (Acceleration) or Clause 26.16 (Super Senior Acceleration) applicable to all Noteholders may be revoked or, as the case may be, waived with the consent of the Majority Noteholders (and, if applicable, the Majority Super Senior Series Noteholders) and any other Noteholder whose consent would have been required to waive the relevant provision breach of which has given rise to the relevant Declared Default, Default, Event of Default, Margin Event of Default, Major Event of Default, Material Event of Default or Relevant Event of Default.
(j) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders Noteholders under the terms of this Agreement, then in the case of of:
(i) any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent; and
(ii) any other Replaced Finance Party and its applicable participation, (iwithout prejudice to paragraph (i) that above), on and from the date such Replaced Finance Party shall be deemed to have given its is replaced in accordance with the provisions of Clause 39.8 (Replacement of Noteholder), a consent or agreement to such request, (ii) such consent or agreement request shall be treated and deemed to have as having been made by such Finance Party and Replaced Finance Party and received by the Agent and (iiiunless otherwise agreed by the Company or stipulated by the relevant Noteholder), subject to paragraph (k) below, such consent or agreement shall, unless otherwise agreed or stipulated by the Company, shall from such time be irrevocable and binding on such Finance Party and Replaced Finance Party (as applicable) and any permitted assignee, transferee or counterparty to a sub-participation.
(lk) If and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting LenderNoteholder, always have the right to change or revoke its their decision and subsequently deliver to the Agent a consent or agreement agreement, or rejection of, to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender Noteholder (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless Unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender Noteholder consent is received as provided in paragraph (k(j) above.
(ml) No amendment Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Note, Series or class of a term Noteholders and which does not materially and adversely affect the rights or interests of any Fee Letter Noteholders in respect of other Notes, Series or other side letter another class of Noteholder shall only require the consent of the Majority Noteholders, Super Majority Noteholders, all Noteholders or all Noteholders forming part of that affected class (as applicable) as if references in this paragraph (l) to “Majority Noteholders”, “Majority Series B Noteholders”, “Majority Super Senior Series Noteholders”, “Super Majority Noteholders” or “Noteholders” were only to Noteholders participating in that Note, Series or forming part of that affected class; and, if so elected, any Finance Party other than amendment, agreement, replacement or waiver relating to a Benchmark Rate Change; or any such person which is party document, supplement, proposal or request in connection with a Super Majority Noteholder Objection; or a Reference Rate Supplement shall be deemed only to such letter.
(n) Notwithstanding anything relate to rights and obligations applicable to the contraryspecific Note and Series being amended, replaced or waived and shall not be deemed to materially and adversely affect the rights or interests of Noteholders in respect of other Notes or Series by virtue of such amendments, replacements or waivers. This paragraph (l) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is pursuant to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Companyparagraph (a) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lendersabove.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(um) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company.
(v) Notwithstanding anything in any Finance Document, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured Party.
Appears in 1 contract
Sources: Senior Notes Purchase Agreement (Inspired Entertainment, Inc.)
Other Exceptions. In addition, a Receiving Party may, notwithstanding the obligations of Section 7.1, disclose Confidential Information:
(a) Except for a Permitted Structural Adjustment, a Structural Adjustment that the Receiving Party can establish by any Lender shall only require the prior consent of the Company clear and each Lender that convincing evidence is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is permitted to increase the Commitments to an extent not otherwise permitted under this Agreement or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement
(b) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered disclosed by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive its right Providing Party;
(b) that the Receiving Party can establish by clear and convincing evidence is required to a prepayment be disclosed by the Receiving Party to defend litigation or to comply with applicable laws or regulations (including by way without limitation disclosure obligations under applicable securities laws or the regulations of amendment any stock exchange or waiver NASDAQ), or in connection with filings with the FDA, the United States Patent and Trademark Office or other similar governmental agencies, provided that the Receiving Party provides prior written notice of such disclosure to the Providing Party and takes reasonable and lawful actions to avoid or minimize the degree of such disclosure; or
(c) concerning the existence and terms of this License Agreement and the status of transactions described herein, under obligations of confidentiality, to the Receiving Party's existing and potential advisors, investors that are bona fide venture capital or institutional investors that make such investments for the potential financial return and not for strategic purposes (so long as such investor does not have more than $1 billion in world-wide pharmaceutical revenue in the most recently completed calendar year) and any Person considering to acquire Hybridon or a controlling interest in Hybridon (a "Potential Acquirer"). Notwithstanding the foregoing, Hybridon shall not make any such disclosure to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
Potential Acquirer (i) Any amendment or waiver until discussions with such Potential Acquirer progress to a stage at which relates only to the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ Potential Acquirer is engaged in comprehensive due diligence of Hybridon's business and which makes such provisions more restrictive for any Hybridon has a good faith belief that the consummation of the Lenders (including any amendment proposed acquisition has become reasonably likely to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement
(j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on occur and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) unless the Potential Acquirer has entered into a confidentiality agreement at least as strict as the provisions of this Section 7.2.2(c), designating Novartis as a third party beneficiary and prohibiting the Potential Acquirer from disclosing or using for its own purposes (other than evaluation of the proposed transaction with Hybridon) any such consent or agreement information. Hybridon shall be deemed notify Novartis in writing prior to have been received by the Agent and (iii) such consent or agreement shall, unless otherwise agreed or stipulated by the Company, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty to a sub-participation.
(l) If and only to the extent the Company agrees or stipulates disclosure pursuant to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above.
(m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (IncreaseSection 7.2.2(c), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate but shall not be included for required to disclose the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver identity of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities Potential Acquirer until after consummation or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent abandonment of the Company.
(v) Notwithstanding anything in any Finance Documenttransaction, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) which time Hybridon shall provide Novartis with a copy of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of confidentiality agreement executed by such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured PartyPotential Acquirer.
Appears in 1 contract
Sources: License, Development and Commercialization Agreement (Hybridon Inc)
Other Exceptions. Such other exceptions or conditions to title as shown on the Leasehold Title Commitment, the parties acknowledging that Landlord has made no independent examination of title to the Premises and is relying on the Title Company for that purpose. Tenant shall have ten (a10) Except for a Permitted Structural Adjustment, a Structural Adjustment by any Lender shall only require the prior consent days after receipt of the Company Leasehold Title Commitment to review the same and each Lender that is participating in that Structural Adjustment and shall not require the consent of any other Lender to deliver its written objections, if any, to Landlord. Within ten (10) days thereafter (unless such Structural Adjustment time is extended in writing by Tenant), Landlord shall (i) correct such objections and perfect title, (ii) have such unpermitted exceptions removed from the Leasehold Title Commitment, or (iii) have the Title Company commit to increase the Commitments to an extent not otherwise permitted under this Agreement insure against loss or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement
(b) Any Permitted Structural Adjustment damage that may be effected pursuant occasioned by such exception; provided, however, that Landlord is under no obligation to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of incur any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required expense in connection with therewith. Landlord shall use its best efforts (not to include the implementation of (and obligation to incur any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (expense in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (econnection therewith) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only provide the Title Company documents to Lenders participating in that Utilisation, Facility or forming part of that affected class. For enable the avoidance of doubt, this paragraph (e) is without prejudice Title Company to insure over the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive its right to a prepayment (including by way of amendment or waiver to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.following items:
(i) Any amendment Rights or waiver which relates only to claims of parties in possession not shown by the provisions governing transfers, assignments or sub-participations by ▇▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreementpublic records;
(j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) such consent or agreement shall Encroachments, overlaps, boundary line disputes, and any other matters which would be deemed to have been received disclosed by the Agent an accurate survey and inspection;
(iii) such consent Easements, or agreement shallclaims of easements, unless otherwise agreed or stipulated not shown by the Companypublic records;
(iv) Any lien, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty right to a sub-participation.
(l) If lien, for services, labor or material heretofore or hereafter furnished, imposed by law and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined shown by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above.
(m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissionspublic records; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company.and
(v) Notwithstanding anything Taxes or public assessments which are not shown as existing liens by the public records. In the event that Landlord is unable to or fails to satisfy such objections to title, Tenant may, at its option, either (i) terminate this Agreement, in which event both parties shall be relieved of any Finance Documentfurther liability hereunder, the Company may request or (ii) waive such objections; provided, however, that the requirement waiver of objections by Tenant to title of its subleasehold interest in the IH Share Security (Premises shall not be construed as defined hereafter) that constituting a waiver by Tenant of any other provision of this Agreement. Tenant shall pay the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) premium of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured PartyLeasehold Title Policy.
Appears in 1 contract
Sources: Ground Lease Agreement (Advanced Environmental Recycling Technologies Inc)
Other Exceptions. (a) Except for a Permitted Structural Adjustment, a Structural Adjustment by any Lender shall only require the prior consent of the Company and each Lender that is participating in that Structural Adjustment and shall not require the consent of any other Lender unless such Structural Adjustment is to increase the Commitments to an extent not otherwise permitted under this Agreement or reduce the tenor of any of the Facilities, in which case, such Structural Adjustment shall also require the consent of the Majority Lenders (including those Lenders participating in the Structural Adjustment). 153 Project Meria: Senior Facilties Agreement
(b) Any Permitted Structural Adjustment may be effected pursuant to an amendment to this Agreement (a "Structural Adjustment Amendment Agreement") executed and delivered by the Company and each consenting Lender in respect of the Permitted Structural Adjustment (the "Consenting Lenders"). The Company shall promptly notify the Agent and the Agent shall promptly notify each Lender as to the effectiveness of any Structural Adjustment Amendment Agreement. Each Structural Adjustment Amendment Agreement may, without the consent of any Lender other than the applicable Consenting Lenders, effect such amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Consenting Lenders and the Company, to give effect to the provisions of this paragraph (b) including any amendments necessary to treat the applicable Loans and/or Commitments of the Consenting Lenders as a new "class" of loans and/or commitments hereunder.
(c) No consent from any Finance Party shall be required in connection with the implementation of (and any related amendment or waiver as part of the implementation of) any Permitted Indebtedness (other than the consent of the relevant person(s) providing the Permitted Indebtedness).
(d) Any amendment or waiver which relates adversely to the specific rights or obligations of the Agent, any Mandated Lead Arranger, a Reference Bank, the Security Agent or a Restricted Finance Party (in each case in such capacity) respectively may not be effected without the consent of the Agent, the relevant Mandated Lead Arranger, the relevant Reference Bank, the Security Agent or the relevant Restricted Finance Party (as the case may be). For the avoidance of doubt, this paragraph (d) shall not entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under another provision of the Finance Documents.
(e) Any amendment, agreement, replacement or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall, if the Company so elects, only require the consent of the Majority Lenders, Super Majority Lenders or all Lenders (as applicable) as if references in this paragraph (e) to "Majority Lenders", "Majority Revolving Facility Lenders", "Super Majority Lenders" or "Lenders" were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph (e) is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (d) above.
(f) Where the Company requests the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders in relation to any amendment or waiver, if the relevant Total Commitments have been reduced to zero (0) at the time of such request, at the Company's option, the consent of the Majority Lenders, Majority Revolving Facility Lenders or Super Majority Lenders shall be deemed to have been given in respect of such amendment or waiver.
(g) With the prior written consent of the Company, each individual Lender may waive its right to a prepayment (including by way of amendment or waiver to any of the provisions) under this Agreement (including Clause 8 (Mandatory Prepayment)) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.
(h) Any amendment to Clause 8.1 (Change of Control) or waiver thereof may be approved with the consent of the Majority Lenders provided that any waiver of a Change of Control shall be at the option of each individual Lender.
(i) Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by ▇L▇▇▇▇▇▇ and which makes such provisions more restrictive for any of the Lenders (including any amendment to Clause 24 (Changes to the Lenders) to the extent further restricting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents) shall only require the consent of each Lender who will be subject to the resulting additional restrictions. 154 Project Meria: Senior Facilties Agreement
(j) Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.
(k) If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent, (i) that Finance Party shall be deemed to have given its consent or agreement to such request, (ii) such consent or agreement shall be deemed to have been received by the Agent and (iii) such consent or agreement shall, unless otherwise agreed or stipulated by the Company, from such time be irrevocable and binding on such Finance Party and any permitted assignee, transferee or counterparty to a sub-participation.
(l) If and only to the extent the Company agrees or stipulates to this effect in connection with any consent, release, waiver, amendment or vote under this Agreement, any Finance Party or its permitted assignee or transferee that has expressly rejected, not consented or not agreed to a request for an amendment, waiver, consent or release shall, unless it is (and only until it becomes) a Non-Consenting Lender, have the right to change or revoke its decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as determined by the Company and notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent). For the avoidance of doubt, unless the Company stipulates or agrees otherwise, the period for any such process shall end as soon as the requisite Lender consent is received as provided in paragraph (k) above.
(m) No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than any such person which is party to such letter.
(n) Notwithstanding anything to the contrary, any amendment, waiver, consent or release of a Finance Document made in accordance with Clause 2.3 (Increase), Clause 36.5 (Replacement of a Lender), Clause 36.9 (Implementation of Permitted Structural Adjustment) or the Intercreditor Agreement shall be binding on all Parties without further consent of any Party.
(o) Any term of the Finance Documents may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent of any other Party if that amendment or waiver is to cure defects or omissions; resolve ambiguities or inconsistencies (including any defects, omissions, ambiguities or manifest inconsistency between a term of a Transaction Security Document and a provision of the Agreed Security Principles); reflect changes of a minor, technical or administrative nature or manifest error; is otherwise only for the benefit of all or any of the Lenders; or (provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment) is consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release.
(p) Any amendment, waiver, consent or release made or effected in accordance with any of the paragraphs of this Clause 36.4, or in accordance with any other term of any of the Finance Documents, shall be binding on all Parties. Each Secured Party irrevocably and unconditionally authorises and instructs the Agent (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received (or on such later date as may be agreed by the Agent and the Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 36. 155 Project Meria: Senior Facilties Agreement
(q) Any Default, Event of Default or any notice, demand, declaration and/or other step or action taken under or pursuant to Clause 23.7 (Acceleration) may be revoked or, as the case may be, waived with the consent of the Majority Lenders.
(r) Notwithstanding anything to the contrary in the Finance Documents, any re-designation or transfer of all or any part of a Commitment and/or a participation in any Utilisation to a new tranche or facility established pursuant to a Structural Adjustment or any other term of any of the Finance Documents (or any other similar or equivalent transaction) may be approved with the consent of the Lender holding that Commitment and/or, as the case may be, participation (or part thereof) and the Company (without any requirement for any consent or approval from any other person).
(s) To the extent disenfranchised in accordance with paragraph (g) of Clause 25 (Debt Purchase Transactions) the Commitment and/or participation of any member of the Group, any Investor Affiliate shall not be included for the purpose of calculating the Total Commitments or participations under the relevant Facility or Facilities when ascertaining whether any relevant percentage (including, for the avoidance of doubt, Accelerating Majority Lenders, Majority Lenders and Super Majority Lenders) of Total Commitments and/or participations has been obtained to approve that request.
(t) Each Finance Party authorises and instructs the Agent to enter into any amendment or waiver of any term of any Finance Document requested by the Company for the purpose of granting additional rights and benefits to the Lenders and/or any group of Lenders and which does not impose material additional liabilities or obligations on such Lenders and/or group of Lenders (as applicable), in each case without the requirement for any consent of any other Finance Party.
(u) For the avoidance of doubt, any amendment, waiver, consent or release shall require the prior written consent of the Company.
(v) Notwithstanding anything in any Finance Document, the Company may request that the requirement in the IH Share Security (as defined hereafter) that the financial securities issued by Iliad Holding pledged pursuant to the securities account pledge agreement (the "IH Share Security") represent at least 25% (or such lower percentage corresponding to the percentage of pledged shares pursuant to the share pledge granted by the children of Initial Investor following the Donation (as defined therein)) of the ordinary shares of Iliad Holding be disapplied, reduced or otherwise waived. Within five (5) Business Days of receipt of such request from the Company, the Security Agent shall, subject to the Agent having received the consent of the Majority Lenders (acting reasonably and in good faith), execute any documentation required by the Company in order for such requirement to be disapplied, reduced or otherwise waived and the Security Agent is irrevocably authorised and instructed to execute such documentation and take any other steps or actions in connection therewith without any further consent, sanction, authority or confirmation from any Secured Party.
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