Additional Financing 2.15.1 In the event that the PIPE Closing does not occur prior to or concurrently with the Closing as a result of the failure of any of the conditions to the PIPE Closing under the Stock Purchase Agreement to have been satisfied or waived or because the Stock Purchase Agreement has been terminated, ECP shall be required to provide $150 million to DYN or the Buyer, as applicable, through one of the following options (provided that if (x) the First Buyout Condition fails to occur (other than in the circumstances described in clause (z) below), ECP can elect either option in its sole discretion, (y) the First Buyout Condition occurs, only the provisions of clause (i) below shall apply and (z) in the event that the First Buyout Condition fails to occur and the PIPE Closing has not occurred or does not occur as a result of the failure of the condition set forth in Section 2.04(g) of the Stock Purchase Agreement, only the provisions of clause (ii) below shall apply): (i) ECP and DYN shall enter into a loan agreement, the specific terms of which shall include the ability of DYN to repay all or a portion of the loan at any time without penalty and shall otherwise be agreed by ECP and DYN, acting reasonably and in good faith, prior to the Closing, pursuant to which ECP shall loan DYN $150 million (the “ECP Loan”), which DYN shall use to fund the Buyer Subsidiary’s obligations under the Purchase Agreement or (ii) (a) ECP’s Commitment shall be increased by $150 million and DYN’s Commitment shall be decreased by $150 million, (b) each Sponsor’s Commitment Percentage shall be increased or decreased, as the case may be, in accordance with the $150 million increase or decrease contemplated by the foregoing clause (a), and (c) ECP shall be required to contribute such additional $150 million to the Buyer at the Closing, subject to the satisfaction or waiver of the conditions set forth in the ECP Equity Commitment Letter; provided that, in each case in the foregoing clauses (i) and (ii), each of DYN and Terawatt shall continue to comply with its obligations set forth in the Stock Purchase Agreement (including effecting the PIPE Closing, subject to the satisfaction or waiver of the conditions set forth in the Stock Purchase Agreement), and provided further that if any of the conditions to the PIPE Closing under the Stock Purchase Agreement are not satisfied or the Stock Purchase Agreement is terminated, in either case due to a material breach of, or material default under, the Stock Purchase Agreement by DYN, ECP shall not be required to provide the ECP Loan, ECP’s Commitment shall not be increased pursuant to clause (ii)(a) above and ECP shall not be required to contribute the additional $150 million to the Buyer at the Closing pursuant to clause (ii)(c) above, unless ECP elects, in its sole discretion, to either provide the ECP Loan or contribute such additional $150 million to the Buyer. For the avoidance of doubt, in the event that ECP contributes an additional $150 million to the Buyer pursuant to this Section 2.15.1, such contribution shall not constitute a Bridge Portion and shall instead be deemed an equity contribution by ECP to the Buyer under the ECP Equity Commitment Letter.
2.15.2 In the event that the PIPE Closing occurs after the actions contemplated in clauses (i) or (ii) of Section 2.15.1 have occurred, the Sponsors hereby agree that (a) ECP shall be deemed to have paid $150 million of DYN’s Commitment on DYN’s behalf, (b) such payment by ECP on DYN’s behalf shall be offset against, and shall be treated as satisfying, Terawatt’s obligation to pay the Purchase Price (as defined in the Stock Purchase Agreement) at the PIPE Closing, (c) in the case of clause (i) of Section 2.15.1, $150 million of the outstanding principal of the ECP Loan shall have been deemed repaid but any accrued and unpaid interest thereon shall be paid to ECP in full by DYN, and (d) in the case of clause (ii) of Section 2.15.1, for purposes of determining the ownership of Units (as defined in the LLC Agreement Form) and the Capital Contributions (as defined in the LLC Agreement Form) of each Sponsor, the actions set forth in clauses (ii)(a) and (ii)(b) of Section 2.15.1 shall be deemed to have not occurred and DYN shall be deemed to have funded DYN’s Commitment as contemplated as of the date hereof (for the avoidance of doubt, at the price per Unit paid by the Sponsors at the Closing).
Additional Considerations For each mediation or arbitration:
(i) Any mediation or arbitration will be held in New York, New York, at the offices of the mediator or arbitrator or at another location selected by CNHICA or the Seller. Any party or witness may participate by teleconference or video conference.
(ii) CNHICA, the Seller and the Requesting Party will have the right to seek provisional relief from a competent court of law, including a temporary restraining order, preliminary injunction or attachment order, if such relief is available by law.
(iii) Neither the Servicer, CNHICA nor the Seller will be required to produce personally identifiable customer information for purposes of any mediation or arbitration. The existence and details of any unresolved Repurchase Request, any informal meetings, mediations or arbitration proceedings, the nature and amount of any relief sought or granted, any offers or statements made and any discovery taken in the proceeding will be confidential, privileged and inadmissible for any purpose in any other mediation, arbitration, litigation or other proceeding. The parties will keep this information confidential and will not disclose or discuss it with any third party (other than a party’s attorneys, experts, accountants and other advisors, as reasonably required in connection with the mediation or arbitration proceeding under this Section 3.3), except as required by law, regulatory requirement or court order. If a party to a mediation or arbitration proceeding receives a subpoena or other request for information of the other party to the mediation or arbitration proceeding, the recipient will promptly notify the other party and will provide the other party with the opportunity to object to the production of its confidential information.
Additional Consideration Retrocessionaire agrees to pay under the Inuring Retrocessions all future premiums Retrocedant is obligated to pay pursuant to the terms of the Inuring Retrocessions to the extent that such premiums are allocable to Retrocessionaire in the manner set forth in Exhibit E hereto, and not otherwise paid by Retrocessionaire and to indemnify Retrocedant for all such premiums paid directly by Retrocedant, net of any ceding commissions and similar amounts paid by Third Party Retrocessionaires to Retrocedant.
Notice to Proceed - Land Acquisition The acquisition of the Land shall not occur until the Director has issued a written Notice to Proceed for land acquisition to the Recipient (the "Notice to Proceed"). Such Notice to Proceed will not be issued until the Director has received a Request to Proceed acceptable to the Director and is assured that the Recipient has complied with all requirements for the approval of a grant under Revised Code Sections 164.20 through 164.27 and any requirements for land acquisition set forth in this Agreement, including without limitation the OPWC's approval of the proposed Deed Restrictions and Title Agent. The Notice to Proceed also shall specify the time frame for the Closing.
Amendments; Waivers; No Additional Consideration No provision of this Agreement may be waived or amended except in a written instrument signed by the Company, Parent and the Shareholders. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.
Additional Fees The Borrower has agreed to pay to the Administrative Agent and the Arranger additional fees, the amount and dates of payment of which are embodied in the Fee Letter.
Non-Cash Consideration In the case of the offering of securities for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair value thereof as determined by the Board of Directors; provided, however, that such fair value as determined by the Board of Directors shall not exceed the aggregate market price of the securities being offered as of the date the Board of Directors authorizes the offering of such securities.
Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEAAffected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEAthe applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEAthe applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEAAffected Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEAAffected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEAthe applicable Resolution Authority.
Closing Date Delivery 2 2.1 Closing.........................................................................................2
Closing Date Certificate Borrower shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.
