If the circumstances of borrowers have changed more temporarily (for example. B with short-term trade difficulties), it may be more appropriate to temporarily waive the provision in question for an agreed period or to suspend it. This would be documented by a letter of waiver or a letter of consent that would avoid any lasting changes to the facility agreement. This is an essential issue that requires proper analysis each time the terms of a secure facility agreement change. For bilateral facilities, the modifier agreement is concluded by the borrower and the lender. With respect to union facilities, the Facility Agent, as a representative of the other financing parties, will normally enter into a modifiing agreement with the borrower. It is customary for the terms of an facility agreement to be changed or restructured several times over its lifetime. While the effects of the current climate are effective, lenders are receiving an increase in these requests, which is clearly due to changes in the circumstances of borrowers. That is why it is useful to recall some of the most important considerations in the documentation of these amendments. CONSIDERING that lenders are willing to accept such a departure from the conditions set out in it; Most of the facilities agreements will include an amendment and exemption clause that will define certain procedural requirements. In the case of union entities, this clause generally distinguishes whether an issue requires the agreement of majority lenders or the unanimous agreement of all lenders (usually reserved for changes to certain important provisions such as margin). This runs counter to the “specific monetary guarantee,” which guarantees obligations arising from a number of financial documents or a particular agreement.
Even if there is a waiver clause in the corresponding loan agreement and the lender is willing to ignore a particular default in order to avoid the risk of further litigation, it is reasonable for the lender to document the fact that the default occurred and that there is no need to do so (or measures suggested by the lender). Any waiver letter must comply with the termination provisions and standard provisions of the underlying loan agreement. This waiver letter corresponds to the relevant clauses of our Long Form Loan Agreement. There may be other factors of influence. For example, it may be necessary to amend and adapt the old facilities agreements to make the conditions compatible with the current policy requirements of donors or with existing legislation.