Agreements and Acknowledgements. (a) The Lenders agree that on or after the effective date of this Amendment, and prior to August 19, 2009, the Lenders shall release up to $6,400,000 of the amounts on deposit in the Debt Service Reserve Account of Borrower 2 to the Borrowers, on the following terms (i) the Loan Parties shall have provided to the Lenders such projections, budgets, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lenders, (ii) such funds shall be utilized only in accordance therewith, (iii) such funds shall be utilized only after the application of all other available funds of the Parent and its Subsidiaries, and (iv) an amount equal to the aggregate amount of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be released, and (z) include a certification by a Responsible Officer as to the application of the requested amounts in detail reasonably satisfactory to the Facility Agent. (b) In consideration of the release of the Lenders’ Liens with respect to Rig 3 and Rig 4, the amendments provided in this Amendment, and the release of funds from the Debt Service Reserve Account of Borrower 2 to bridge the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment fee, with respect to the Lenders’ agreement in Section 3(a) above, in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a) of the Credit Agreement. (c) The parties to this Amendment acknowledge and agree that Term Tranche 3 Commitments, Term Tranche 4 Commitments, Top-Up Tranche 1 Commitments in excess of $10,800,000, Top-Up Tranche 2 Commitments, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitments, and Revolving Commitments in excess of $10,000,000 are terminated. For the avoidance of doubt, no prepayment premiums due under Section 2.07(d)(iii) of the Credit Agreement are due in connection with such terminations. (d) The Lenders agree and acknowledge that they will release their Liens with respect to Rig 3 and Rig 4, respectively, in connection with the closing of the financing of Rig 3 and Rig 4, each such release to be effective simultaneously with the closing of the financing for the respective rig. In connection therewith, the Lenders authorize the Facility Agent, and the Facility Agent agrees to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together with such other release documents as are reasonably requested by the Borrowers to effectuate and evidence such releases.
Appears in 1 contract
Agreements and Acknowledgements. Mr. Mitrikov agrees and acknowledges as follows:
(a) The Lenders agree that on Mr. Mitrikov will not disparage or after the effective date of this Amendment, and prior to August 19, 2009, the Lenders shall release up to $6,400,000 defame in any way any of the amounts on deposit in the Debt Service Reserve Account of Borrower 2 to the Borrowers, on the following terms
(i) the Loan Parties shall have provided to the Lenders such projections, budgets, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lenders, (ii) such funds shall be utilized only in accordance therewith, (iii) such funds shall be utilized only after the application of all other available funds of the Parent and its Subsidiaries, and (iv) an amount equal to the aggregate amount of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier of (A) August 24, 2009, and (B) the receipt by the Parent Releasees or any of RAIT’s or its Affiliates of proceeds from a Debt issuance affiliates products or offering of Equity Interests by the Parent or any of its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be releasedservices, and (z) include a certification by a Responsible Officer as to the application of the requested amounts RAIT will not disparage or defame in detail reasonably satisfactory to the Facility Agentany way Mr. Mitrikov.
(b) In consideration of the release of the Lenders’ Liens with respect to Rig 3 and Rig 4, the amendments provided in this Amendment, and the release of funds from the Debt Service Reserve Account of Borrower 2 to bridge the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid Mr. Mitrikov agrees that he remains subject to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment fee, with respect to the Lenders’ agreement Restrictive Covenants in Section 3(a6.1(b) above, in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a6.1(c) of the Credit AgreementEmployment Agreement and that RAIT may, without limitation, exercise the rights and remedies referenced in Section 6.2 of the Employment Agreement in connection with any breach thereof. The duration of any such Restrictive Covenant, where applicable, shall begin on the Termination Date.
(c) The parties Mr. Mitrikov remains subject to this Amendment acknowledge and agree that Term Tranche 3 CommitmentsRAIT’s Xxxxxxx Xxxxxxx Policy until such time as he is not aware of any material nonpublic information concerning RAIT, Term Tranche 4 Commitmentswhich will not be before two trading days following the date of RAIT’s earnings release for quarter ending June 30, Top-Up Tranche 1 Commitments in excess of $10,800,000, Top-Up Tranche 2 Commitments, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitments, and Revolving Commitments in excess of $10,000,000 are terminated. For the avoidance of doubt, no prepayment premiums due under Section 2.07(d)(iii) of the Credit Agreement are due in connection with such terminations2011.
(d) The Lenders agree Mr. Mitrikov shall deliver all property of RAIT to the person designated by RAIT to receive same, including keys, identification cards, cellphones, blackberries, computers, records and acknowledge that they will release their Liens information belonging to RAIT (including any documents, memoranda or files, stored in whatever media).
(e) For so long as the Indemnification Agreements remain in effect and Mr. Mitrikov is indemnified thereunder, Mr. Mitrikov promises to assist RAIT with the transition of his job responsibilities to other employees of RAIT and its affiliates for six months following the Termination Date and to provide reasonable cooperation to RAIT and its attorneys in connection with any investigations, lawsuits, or other proceedings in which RAIT or its employees may become involved, in each case with respect to Rig 3 work performed for RAIT by Mr. Mitrikov prior to the Termination Date.
(f) Mr. Mitrikov acknowledges and Rig 4agrees that he will be fully responsible for the payment of any and all taxes (including, respectivelybut not limited to, in connection any and all applicable federal, state, and local income, excise, penalty or other taxes, plus interest) due and owing by him as a result of RAIT’s payment to him of the Amount and RAIT’s payment of any amounts or delivery of RAIT common shares to him pursuant to the Remaining Phantom Units.
(g) Mr. Mitrikov agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed to Mr. Mitrikov by RAIT.
(h) Mr. Mitrikov agrees, covenants and promises that he will not communicate or disclose the terms of this Agreement to any persons with the closing exception of members of Mr. Mitrikov’s immediate family, legal counsel, and personal tax and financial advisors, and such representatives of Mr. Mitrikov whose knowledge of the financing terms of Rig 3 this Agreement is necessary for business purposes.
(i) Mr. Mitrikov certifies that RAIT has not made any representations to Mr. Mitrikov concerning this Agreement other than those contained herein.
(j) Mr. Mitrikov acknowledges and Rig 4agrees as follows:
(i) That he has read the terms of this Agreement, each such release that he had a reasonable period to be effective simultaneously review it and that he understands its terms and effects, including the fact that he has agreed to RELEASE AND FOREVER DISCHARGE RAIT and the other Releasees from any legal action arising out of his employment relationship with the closing RAIT or any of the financing for Releasees or the respective rig. In connection therewithEmployment Agreements, the Lenders authorize the Facility Agentterms and conditions of that employment relationship, and the Facility Agent agrees termination of that employment relationship;
(ii) That he has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which he acknowledges is adequate and satisfactory to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together him; and
(iii) That he has been advised and is hereby advised in writing to consult with such other release documents as are reasonably requested by the Borrowers his attorney prior to effectuate and evidence such releasessigning this Agreement.
Appears in 1 contract
Agreements and Acknowledgements. (a) The Lenders This Letter is a Loan Document. Except as affected by this Letter, the Loan Documents are unchanged and continue in full force and effect. However, in the event of any inconsistency between the terms of the Credit Agreement, as amended by this Letter, and any other Loan Document, the terms of the Credit Agreement will control and the other document will be deemed to be amended to conform to the terms of the Credit Agreement. All references to the Credit Agreement will refer to the Credit Agreement as amended by this Letter and any other amendments properly executed among the parties. Borrowers agree that on all Loan Documents to which they are a party (whether as an original signatory or after by assumption of the effective date Obligations) remain in full force and effect and continue to evidence their respective legal, valid and binding obligations enforceable in accordance with their terms (as the same are affected by this Letter or are amended in connection with this Letter). AS A MATERIAL INDUCEMENT TO THE ADMINISTRATIVE AGENT AND LENDERS PARTY HERETO TO ENTER INTO THIS LETTER, BORROWERS RELEASE THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE LENDERS AND THEIR RESPECTIVE PREDECESSORS, SUCCESSORS, ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, TRUSTEES, AGENTS AND ATTORNEYS FROM ANY LIABILITY FOR ACTIONS OR FAILURES TO ACT IN CONNECTION WITH THE LOAN DOCUMENTS PRIOR TO THE DATE OF THIS LETTER. NO COURSE OF DEALING BETWEEN BORROWERS OR ANY OTHER PERSON, ON THE ONE HAND, AND THE ADMINISTRATIVE AGENT, ISSUING BANK AND THE LENDERS, ON THE OTHER, WILL BE DEEMED TO HAVE ALTERED OR AMENDED THE CREDIT AGREEMENT OR AFFECTED EITHER BORROWERS’, THE ADMINISTRATIVE AGENT’S, THE ISSUING BANK’S OR THE LENDERS’ RIGHT TO ENFORCE THE CREDIT AGREEMENT AS WRITTEN. This Letter will be binding upon and inure to the benefit of each of the undersigned and their respective successors and permitted assigns. Neither the execution by the Administrative Agent or the Lenders of this AmendmentLetter, and prior to August 19, 2009, nor any other act or omission by the Administrative Agent or the Lenders or their officers in connection herewith, shall release up to $6,400,000 be deemed a waiver by the Administrative Agent or the Lenders of any other defaults which may exist or which may occur in the future under the Credit Agreement and/or the other Loan Documents, or any future defaults of the amounts on deposit same provision waived hereunder (collectively “Other Violations”). Similarly, nothing contained in the Debt Service Reserve Account of Borrower 2 to the Borrowers, on the following terms
this Letter shall directly or indirectly in any way whatsoever either: (i) impair, prejudice or otherwise adversely affect the Administrative Agent’s or the Lenders’ right at any time to exercise any right, privilege or remedy in connection with the Loan Parties shall have provided Documents with respect to the Lenders such projections, budgets, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lendersany Other Violations, (ii) such funds shall be utilized only in accordance therewithexcept for the Amendment herein provided, amend or alter any provision of the Credit Agreement, the other Loan Documents, or any other contract or instrument, or (iii) such funds constitute any course of dealing or other basis for altering any obligation of the Borrowers and/or the Guarantors or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents, or any other contract or instrument. Nothing in this Letter shall be utilized only after construed to be a consent by the application of all other available funds Administrative Agent or the Lenders to any Other Violations. This Letter shall be governed by, and construed in accordance with, the laws of the Parent and its Subsidiaries, and (iv) an amount equal State of New York without regard to the aggregate amount any choice of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be released, and (z) include a certification by a Responsible Officer as to law provisions that would require the application of the requested amounts law of another jurisdiction. This Letter may be separately executed in detail reasonably satisfactory any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same agreement. This Letter shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the Loan Parties and Required Lenders. This Letter may be transmitted and/or signed by facsimile, telecopy or electronic mail. The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, all Lenders and the Administrative Agent. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature THIS LETTER, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. Each Guarantor by its execution in the space provided below under “ACKNOWLEDGED for purposes of ‘Guarantor’s Acknowledgment’” hereby ratifies, confirms, acknowledges and agrees that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of the Obligations, and its execution and delivery of this Letter does not indicate or establish an approval or consent requirement by any Guarantor under the Guaranty in connection with the execution and delivery of amendments to the Facility Agent.
(b) In consideration Credit Agreement, the Notes or any of the release of other Loan Documents (other than the Lenders’ Liens with respect Guaranty or any other Loan Document to Rig 3 and Rig 4, which a Guarantor is a party). If the amendments provided in this Amendment, and the release of funds from the Debt Service Reserve Account of Borrower 2 to bridge the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment fee, foregoing correctly states your understanding with respect to the Lenders’ agreement matters stated in Section 3(a) abovethis Letter, please acknowledge by signing in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as space provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a) of the Credit Agreementbelow.
(c) The parties to this Amendment acknowledge and agree that Term Tranche 3 Commitments, Term Tranche 4 Commitments, Top-Up Tranche 1 Commitments in excess of $10,800,000, Top-Up Tranche 2 Commitments, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitments, and Revolving Commitments in excess of $10,000,000 are terminated. For the avoidance of doubt, no prepayment premiums due under Section 2.07(d)(iii) of the Credit Agreement are due in connection with such terminations.
(d) The Lenders agree and acknowledge that they will release their Liens with respect to Rig 3 and Rig 4, respectively, in connection with the closing of the financing of Rig 3 and Rig 4, each such release to be effective simultaneously with the closing of the financing for the respective rig. In connection therewith, the Lenders authorize the Facility Agent, and the Facility Agent agrees to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together with such other release documents as are reasonably requested by the Borrowers to effectuate and evidence such releases.
Appears in 1 contract
Agreements and Acknowledgements. (a) The Lenders agree Executive agrees that on or after the effective date of this Amendment, he remains subject to Sections 6 (and prior to August 19, 2009, the Lenders shall release up to $6,400,000 its subsections) of the amounts on deposit Employment Agreement relating to Covenants Against Competition and Other Covenants. Executive agrees also that RAIT may, without limitation, exercise the rights and remedies referenced in Section 6.2 of the Debt Service Reserve Account Employment Agreement in connection with any breach of Borrower 2 to any of Executive’s continuing restrictions set forth in Section 6 (and its subsections) of the Borrowers, Employment Agreement. The duration of any applicable restrictions contained in Section 6 (and its applicable subsections) shall begin on the following terms
(i) the Loan Parties shall have provided to the Lenders such projections, budgets, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lenders, (ii) such funds shall be utilized only in accordance therewith, (iii) such funds shall be utilized only after the application of all other available funds of the Parent and its Subsidiaries, and (iv) an amount equal to the aggregate amount of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be released, and (z) include a certification by a Responsible Officer as to the application of the requested amounts in detail reasonably satisfactory to the Facility Agent.Employment Termination Date;
(b) In consideration Executive remains subject to RAIT’s Xxxxxxx Xxxxxxx Policy until such time as he is not aware of any material nonpublic information concerning RAIT, which will in any event be deemed not to be before the release of third (3rd) business day after RAIT terminates the Lenders’ Liens with respect to Rig 3 and Rig 4“black-out period” then currently in effect (provided, however, that the amendments provided in this Amendment, and the release of funds “black-out period” shall not prevent Executive from the Debt Service Reserve Account of Borrower 2 to bridge the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment fee, with respect to the Lenders’ agreement in Section 3(a) above, in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a) of the Credit Agreement.exercising his SARs);
(c) The parties Executive shall deliver, within five (5) days after the Employment Termination Date, all property of RAIT to this Amendment acknowledge the person designated by RAIT to receive same, including keys, identification cards, RAIT’s (and agree that Term Tranche 3 Commitmentsits subsidiaries’ and its affiliates’) credit cards and equipment, Term Tranche 4 Commitmentssuch as cellphones, Top-Up Tranche 1 Commitments in excess of $10,800,000blackberries, Top-Up Tranche 2 Commitmentscomputers, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitmentsrecords and information belonging to RAIT, and Revolving Commitments any documents, memoranda or files, stored in excess of $10,000,000 are terminated. For whatever media, retaining no copies; provided, however, that Executive may retain the avoidance of doubtsmart phone, no prepayment premiums due under Section 2.07(d)(iii) iPad, and laptop computer that he was using as of the Credit Agreement are due in connection end of his employment with such terminations.RAIT;
(d) The Lenders agree Executive promises to assist RAIT, upon RAIT’s request, with the transition of his job responsibilities to other employees of RAIT and acknowledge that they will release their Liens its subsidiaries and its affiliates, and to provide reasonable cooperation to RAIT and its attorneys in connection with any investigations, lawsuits, or other proceedings in which RAIT or its employees may become involved, in each case with respect to Rig 3 work performed for RAIT or its subsidiaries or its affiliates by Executive prior to the Effective Date, and Rig 4, respectivelyRAIT shall reimburse Executive for all costs he incurs in providing such assistance at RAIT’s request and, in connection with the closing event such assistance exceeds two (2) hours per month, RAIT shall compensate Executive for each hour of assistance he provides at a rate of two hundred thirty dollars ($230) per hour;
(e) Executive acknowledges and agrees that he will be fully responsible for the payment of any and all taxes (including, but not limited to, any and all applicable federal, state, and local income, excise, penalty or other taxes, plus interest) due and owing by him as a result of RAIT’s payment to him of the financing Amount and RAIT’s payment of Rig 3 any amounts or delivery of RAIT common shares or SARs to him or the exercise of the SARs;
(f) Executive agrees and Rig 4, each such release acknowledges that this Agreement is not and shall not be construed to be effective simultaneously with an admission of any violation of any federal, state or local statute or regulation, or of any duty owed to Executive by RAIT. RAIT agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or any duty owed to RAIT or its subsidiaries or its affiliates by Executive.
(g) Executive and RAIT certify that the closing other has not made any representations, promises or inducements to Executive concerning this Agreement other than those contained herein; and
(h) Executive acknowledges and agrees as follows:
(1) That he has read the terms of this Agreement, that he was offered forty-five (45) calendar days to review it (which he confirms was a reasonable and sufficient amount of time for him to do so, but he may elect not to use the financing entire review period that has been offered) and that he understands its terms and effects, including the fact that he has agreed to RELEASE AND FOREVER DISCHARGE RAIT and the other Releasees from any legal action as provided in Paragraph 2 above;
(2) That he has signed this Agreement voluntarily and knowingly in exchange for the respective rig. In connection therewithconsideration described herein, which he acknowledges is adequate and satisfactory to him;
(3) That he has been advised and is hereby advised in writing to consult with his attorney prior to signing this Agreement; and
(4) That he has adequate information to make a knowing and voluntary waiver of any and all claims as set forth in Paragraph 3 above, he understands that he is waiving those claims, including without limitation, any claims for age discrimination under the Lenders authorize Age Discrimination in Employment Act, as amended by the Facility AgentOlder Worker Benefit Protection Act (“OWBPA”), and the Facility Agent agrees he confirms that he has received Attachment A to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together with such other release documents as are reasonably requested by the Borrowers to effectuate and evidence such releasesthis Agreement.
Appears in 1 contract
Agreements and Acknowledgements. Executive agrees and acknowledges as follows:
(a) Executive agrees that he remains subject to Sections 5 (and its subsections) of the Employment Agreement relating to Non-Competition, Non-Solicitation, Intellectual Property, Developments and Confidentiality as set forth in Section 5 (and its subsections), except that RAIT (as set forth in Paragraph 1(d)(iii) above) waives the non-competition restriction in Section 5.1(a) of the Employment Agreement as of the Resignation Date. Executive agrees also that RAIT may, without limitation, exercise the rights and remedies referenced in Section 5.4 of the Employment Agreement in connection with any breach of any of Executive’s continuing restrictions set forth in Section 5 (and its subsections) of the Employment Agreement, excluding, for clarity, the non-competition restriction in Section 5.1(a) of the Employment Agreement waived by RAIT in Paragraph 1(d)(iii) above. The Lenders agree duration of any applicable restrictions contained in Section 5 (and its applicable subsections) shall begin on the Resignation Date;
(b) Executive remains subject to RAIT’s Xxxxxxx Xxxxxxx Policy until such time as he is not aware of any material nonpublic information concerning RAIT, which will in any event be deemed not to be before the date that is two (2) business days after the filing of RAIT’s 2012 audited financial statements on SEC form 10K;
(c) Executive shall deliver, on or after before the effective date Resignation Date, all property of RAIT to the person designated by RAIT to receive same, including keys, identification cards, RAIT’s (and its subsidiaries’ and its affiliates’) credit cards and equipment, such as cellphones, blackberries, computers, records and information belonging to RAIT, and any documents, memoranda or files, stored in whatever media, retaining no copies;
(d) For so long as any applicable Indemnification Agreements remain in effect and Executive is indemnified thereunder, Executive promises to assist RAIT with the transition of his job responsibilities to other employees of RAIT and its subsidiaries and its affiliates, including IRT, and to provide reasonable cooperation to RAIT and its attorneys in connection with any investigations, lawsuits, or other proceedings in which RAIT or its employees may become involved, in each case with respect to work performed for RAIT or its subsidiaries or its affiliates by Executive prior to the Resignation Date;
(e) Executive acknowledges and agrees that he will be fully responsible for the payment of any and all taxes (including, but not limited to, any and all applicable federal, state, and local income, excise, penalty or other taxes, plus interest) due and owing by him as a result of RAIT’s payment to him of the Amount and RAIT’s payment of any amounts or delivery of RAIT common shares or SARs to him or the exercise of the SARs; and
(f) Executive agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed to Executive by RAIT. RAIT agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or any duty owed to RAIT or its subsidiaries or its affiliates by Executive.
(g) Executive certifies that RAIT has not made any representations to Executive concerning this Agreement other than those contained herein.
(h) Executive acknowledges and agrees as follows:
(1) That he has read the terms of this AmendmentAgreement, that he was given twenty-one (21) calendar days to review it (which he confirms was a reasonable and sufficient amount of time for him to do so), and that he understands its terms and effects, including the fact that he has agreed to RELEASE AND FOREVER DISCHARGE RAIT and the other Releasees from any legal action arising out of his employment relationship with RAIT or any of the Releasees or the Employment Agreement, the terms and conditions of that employment relationship, and his resignation from RAIT. For clarity, Executive also acknowledges and agrees that he waives any requirement in the Employment Agreement that he be given forty-five (45) calendar days to review this Agreement;
(2) That he has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which he acknowledges is adequate and satisfactory to him;
(3) That he has been advised and is hereby advised in writing to consult with his attorney prior to August 19, 2009, the Lenders shall release up to $6,400,000 of the amounts on deposit in the Debt Service Reserve Account of Borrower 2 to the Borrowers, on the following termssigning this Agreement; and
(i) the Loan Parties shall have provided Executive agrees to the Lenders such projectionscomply with RAIT’s reasonable requests for information, budgetsincluding, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lenders, (ii) such funds shall be utilized only in accordance therewith, (iii) such funds shall be utilized only after the application of all other available funds of the Parent and its Subsidiaries, and (iv) an amount equal to the aggregate amount of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be released, and (z) include a certification by a Responsible Officer as to the application of the requested amounts in detail reasonably satisfactory to the Facility Agent.
(b) In consideration of the release of the Lenders’ Liens with respect to Rig 3 and Rig 4, the amendments provided in this Amendment, and the release of funds from the Debt Service Reserve Account of Borrower 2 to bridge the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment feewithout limitation, with respect to the Lenders’ agreement in Section 3(a) above, in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, governmental filings and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a) of the Credit Agreementregulatory information requests.
(c) The parties to this Amendment acknowledge and agree that Term Tranche 3 Commitments, Term Tranche 4 Commitments, Top-Up Tranche 1 Commitments in excess of $10,800,000, Top-Up Tranche 2 Commitments, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitments, and Revolving Commitments in excess of $10,000,000 are terminated. For the avoidance of doubt, no prepayment premiums due under Section 2.07(d)(iii) of the Credit Agreement are due in connection with such terminations.
(d) The Lenders agree and acknowledge that they will release their Liens with respect to Rig 3 and Rig 4, respectively, in connection with the closing of the financing of Rig 3 and Rig 4, each such release to be effective simultaneously with the closing of the financing for the respective rig. In connection therewith, the Lenders authorize the Facility Agent, and the Facility Agent agrees to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together with such other release documents as are reasonably requested by the Borrowers to effectuate and evidence such releases.
Appears in 1 contract
Agreements and Acknowledgements. (a) The Lenders agree Executive agrees that on or after the effective date of this Amendment, he remains subject to Sections 5 (and prior to August 19, 2009, the Lenders shall release up to $6,400,000 its subsections) of the amounts on deposit Employment Agreement relating to Non-Competition, Non-Solicitation, Intellectual Property, Developments and Confidentiality as set forth in Section 5 (and its subsections). Executive agrees also that RAIT may, without limitation, exercise the Debt Service Reserve Account rights and remedies referenced in Section 5.4 of Borrower 2 to the Borrowers, Employment Agreement in connection with any breach of any of Executive’s continuing restrictions set forth in Section 5 (and its subsections) of the Employment Agreement. The duration of any applicable restrictions contained in Section 5 (and its applicable subsections) shall begin on the following termsEmployment Termination Date;
(ib) Executive remains subject to RAIT’s Xxxxxxx Xxxxxxx Policy until such time as he is not aware of any material nonpublic information concerning RAIT, which will in any event be deemed to be after two (2) business days after RAIT terminates the Loan Parties “black-out period” then currently in effect (provided, however, that the “black-out period” shall have provided to the Lenders such projectionsnot prevent Executive from exercising his SARs);
(c) Executive shall deliver, budgets, and information regarding the intended application of such funds as shall have been requested by the Lenders and which shall be satisfactory to the Lenders, (ii) such funds shall be utilized only in accordance therewith, (iii) such funds shall be utilized only after the application of all other available funds of the Parent and its Subsidiaries, and (iv) an amount equal to the aggregate amount of all Released Amounts shall be deposited by the Borrowers into the Debt Service Reserve Account of Borrower 2 on or before the earlier Employment Termination Date, all property of RAIT to the person designated by RAIT to receive same, including keys, identification cards, RAIT’s (Aand its subsidiaries’ and its affiliates’) August 24credit cards and equipment, 2009such as blackberries, computers, records and information belonging to RAIT, and any documents, memoranda or files, stored in whatever media, retaining no copies;
(Bd) Executive promises to assist RAIT with the receipt by the Parent or any transition of his job responsibilities to other employees of RAIT and its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of subsidiaries and its Subsidiaries. The Borrowers may loan any Released Amounts to the Parent. The Borrowers (or either of them) may make no more than 5 requests (in the aggregate for both Borrowers) for Released Amounts, which requests must (x) be received by the Facility Agent at least 2 Business Days prior to date on which such amounts are requested to be released, (y) specify the amount requested to be releasedaffiliates, and (z) include a certification by a Responsible Officer as to the application of the requested amounts provide reasonable cooperation to RAIT and its attorneys in detail reasonably satisfactory to the Facility Agent.
(b) In consideration of the release of the Lenders’ Liens connection with any investigations, lawsuits, or other proceedings in which RAIT or its employees may become involved, in each case with respect to Rig 3 work performed for RAIT or its subsidiaries or its affiliates by Executive prior to the Effective Date;
(e) Executive acknowledges and Rig 4agrees that he will be fully responsible for the payment of any and all taxes (including, the amendments provided in this Amendmentbut not limited to, any and all applicable federal, state, and local income, excise, penalty or other taxes, plus interest) due and owing by him as a result of RAIT’s payment to him of the release Amount and RAIT’s payment of funds from any amounts or delivery of RAIT common shares or SARs to him or the Debt Service Reserve Account exercise of Borrower 2 the SARs; however, RAIT shall allow Executive to bridge satisfy the Parent’s and the Borrowers’ liquidity shortfall, fees shall be paid to the Lenders as follows: (i) an amendment and lien release fee of $100,000 (in the aggregate) shall be payable upon signing of this Amendment, (ii) an additional amendment fee, tax withholding obligations with respect to the Lenders’ agreement in Section 3(a) above, in the amount of $650,000 (in the aggregate) shall be payable to the Lenders on the earlier of (A) August 24, 2009, and (B) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries, and (iii) if any amounts are released from Borrower 2’s Debt Service Reserve Account as provided in Section 3(a) above, an additional fee of $250,000 (in the aggregate) to the Lenders on the earlier of (i) August 24, 2009, and (ii) the receipt by the Parent or any of its Affiliates of proceeds from a Debt issuance or offering of Equity Interests by the Parent or any of its Subsidiaries. For the avoidance of doubt, failure to pay such fees as and when due hereunder shall constitute an Event of Default as provided in Section 7.01(a) exercise of the Credit Agreement.
(c) The parties Executive’s vested SARs, which exercise is to this Amendment acknowledge and agree that Term Tranche 3 Commitments, Term Tranche 4 Commitments, Top-Up Tranche 1 Commitments in excess of $10,800,000, Top-Up Tranche 2 Commitments, Top-Up Tranche 3 Commitments, Top-Up Tranche 4 Commitments, and Revolving Commitments in excess of $10,000,000 are terminated. For the avoidance of doubt, no prepayment premiums due under Section 2.07(d)(iii) be settled with common shares of the Credit Agreement are due issuer, by having common shares withheld from the common shares issued in connection with such terminationssettlement; and
(f) Executive agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed to Executive by RAIT. RAIT agrees and acknowledges that this Agreement is not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or any duty owed to RAIT or its subsidiaries or its affiliates by Executive.
(dg) The Lenders agree Executive certifies that RAIT has not made any representations, promises or inducements to Executive concerning this Agreement other than those contained herein.
(h) Executive acknowledges and acknowledge agrees as follows:
(1) That he has read the terms of this Agreement, that they will release their Liens he was offered forty-five (45) calendar days to review it (which he confirms was a reasonable and sufficient amount of time for him to do so, but he may elect not to use the entire review period that has been offered) and that he understands its terms and effects, including the fact that he has agreed to RELEASE AND FOREVER DISCHARGE RAIT and the other Releasees from any legal action arising out of his employment relationship with respect to Rig 3 and Rig 4, respectively, in connection with the closing RAIT or any of the financing Releasees or the Employment Agreement, the terms and conditions of Rig 3 that employment relationship, and Rig 4, each such release to be effective simultaneously with the closing his termination of the financing employment from RAIT;
(2) That he has signed this Agreement voluntarily and knowingly in exchange for the respective rig. In connection therewithconsideration described herein, which he acknowledges is adequate and satisfactory to him;
(3) That he has been advised and is hereby advised in writing to consult with his attorney prior to signing this Agreement; and
(4) That he has adequate information to make a knowing and voluntary waiver of any and all claims as set forth in Paragraph 3 above, he understands that he is waiving those claims, including without limitation, any claims for age discrimination under the Lenders authorize Age Discrimination in Employment Act, as amended by the Facility AgentOlder Worker Benefit Protection Act (“OWBPA”), and the Facility Agent agrees he confirms that he has received Attachment A to execute, at the Borrowers’ sole expense, the release documents on the Amendment No. 2 Closing Document List of even date herewith, together with such other release documents as are reasonably requested by the Borrowers to effectuate and evidence such releasesthis Agreement.
Appears in 1 contract
