Modifications of Certain Documents The Borrower will not consent to any modification, supplement or waiver of (a) any of the provisions of any agreement, instrument or other document evidencing or relating to any Permitted Indebtedness that would result in such Permitted Indebtedness not meeting the requirements of the definition of “Permitted Indebtedness” set forth in Section 1.01 of this Agreement, unless following such amendment, modification or waiver, such Permitted Indebtedness would otherwise be permitted under Section 6.01, or (b) either of the Affiliate Agreement or the Custodian Agreement, unless such modification, supplement or waiver is not materially less favorable to the Borrower than could be obtained on an arm’s-length basis from unrelated third parties, in each case, without the prior consent of the Administrative Agent (with the approval of the Required Lenders). Without limiting the foregoing, the Borrower may, at any time and from time to time, without the consent of the Administrative Agent or the Required Lenders, freely amend, restate, terminate, or otherwise modify any documents, instruments and agreements evidencing, securing or relating to Indebtedness permitted pursuant to Section 6.01(d), including increases in the principal amount thereof, modifications to the advance rates and/or modifications to the interest rate, fees or other pricing terms so long as following any such action such Indebtedness continues to be permitted under Section 6.01(d).
Specifications of Certain Matters Anything referred to in this Annex as being specified in Paragraph 11 also may be specified in one or more Confirmations or other documents and this Annex will be construed accordingly.
Modification of Certain Agreements Each Credit Party will not, and will not permit any of its Subsidiaries or Affiliates to, consent to any amendment, supplement, waiver or other modification of, or enter into any forbearance from exercising any rights with respect to the terms or provisions contained in (a) any Organization Documents of a Credit Party, in each case, other than any amendment, supplement, waiver or modification or forbearance that could not reasonably be expected to be materially adverse to the interests of the Secured Parties (except with the consent of the Required Lenders) or if required by law, (b) any document, agreement or instrument evidencing or governing any Indebtedness that has been subordinated to the Obligations in right of payment or secured by any Liens that have been subordinated in priority to the Liens of Agent unless such amendment, supplement, waiver or other modification is permitted under the terms of the subordination or intercreditor agreement applicable thereto or could not reasonably be expected to be materially adverse to the interests of the Secured Parties (it being understood that the foregoing shall not prohibit the refinancing, replacement or exchange of such Indebtedness), or (c) the Acquisition Agreement and the Ancillary Agreements (as defined in the Acquisition Agreement) (collectively, the “Acquisition Documents”), in each case, other than any amendment, supplement, waiver or modification or forbearance that could not reasonably be expected to be adverse to the interests of the Secured Parties (except with the consent of the Required Lenders); provided, that, any amendment, supplement, waiver or modification or forbearance of the Acquisition Documents such that any Credit Party or any of their Subsidiaries become directly or indirectly liable with respect to the Deferred Purchase Price shall be deemed adverse to the interests of the Secured Parties.
Amendment of Certain Documents Such Borrower will not amend or otherwise modify its Certificate of Formation or Articles of Association as the case may be, or operating agreement in any way which would have a Material Adverse Effect on such Borrower.
Notification of Certain Commission Actions After the date of this Agreement, the Company shall promptly advise the Representative in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus, the Time of Sale Disclosure Package or the Prospectus, (C) of the time and date that any post-effective amendment to the Registration Statement becomes effective, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus, or (E) of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A and 430B, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule 424(b)(8) or Rule 164(b)).
Notification of Certain Matters The Company, Omron and Parent shall promptly notify each other of (a)(i) any notice or other communication received by a party to this Agreement from any Governmental Entity in connection with the Offer, the Merger or the other transactions contemplated hereby or (ii) any notice or other communication received by a party to this Agreement from any Person alleging that the consent of such Person is or may be required in connection with the Offer, the Merger or the other transactions contemplated hereby if, in the case of this clause (ii), the subject matter or result of such communication would reasonably be expected to be material to the Company or the Offer, the Merger or the other transactions contemplated hereby, (b) any Action commenced or, to such party’s knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the Offer, the Merger or the other transactions contemplated hereby unless, in the case of a threatened Action, such Action is, or would reasonably be expected to be, solely for immaterial monetary relief or (c) the discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would cause or result in any of the Offer Conditions set forth in Exhibit A hereto or any of the conditions to the Merger set forth in Article VII not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; provided, however, that the delivery of any notice pursuant to this Section 6.8 shall not (i) cure any breach of, or non-compliance with, any other provision of this Agreement or (ii) limit the remedies available to the party receiving such notice; provided, further, that failure to give prompt notice pursuant to clause (c) shall not constitute a failure of a condition to the Merger set forth in Article VII or the Offer Conditions set forth in Exhibit A hereto except to the extent that the underlying fact or circumstance not so notified would standing alone constitute such a failure.
Assumption of Certain Liabilities a. Notwithstanding anything contained in this Agreement or in any Exhibit to the contrary, Buyer is not and shall not assume any liabilities of the Business or of the Seller, except for the following liabilities of the Seller pertaining solely to the operation of the Business after the Closing Date (the “Assumed Liabilities”):
i. The obligations of Seller and related payment requirements from and after the Closing Date under the unexpired facility leases for the office of Seller as set forth on the Schedule of Lease Obligations attached hereto as Exhibit 5-A1.
ii. The obligations of Seller and related payment requirements from and after the Closing Date under any equipment lease, lease/purchase or maintenance agreements for those items of office equipment to be purchased by Buyer pursuant to this Agreement, as set forth on the Schedule of Equipment Leases attached hereto as Exhibit 5-A2.
iii. The obligation to pay the Buyer’s customary and normal commissions with respect to mortgage transactions which are pending at the time of Closing and which are finalized following Closing.
iv. The obligation to pay to Shareholder monthly rent in the amount of SIX THOUSAND FOUR HUNDRED ELEVEN and 45/100 Dollars ($6,411.45), as well as one prorated payment of THREE THOUSAND TWO HUNDRED FIVE and 73/100 Dollars ($3,205.73), that has been prepaid by Seller Parties through March 2007. Such amount shall be paid pursuant to the Promissory Note.
b. Notwithstanding anything contained in this Agreement or in any Exhibit to the contrary, Buyer does not assume any liability not being identified herein as being assumed by Buyer, and in particular (by way of illustration and not limitation) Buyer does not assume any of the following liabilities, which liabilities will remain the obligations of Seller (such liabilities are herein collectively referred to as the “Excluded Liabilities”):
i. Any and all trade payables outstanding, accrued to, or due as of the Closing Date.
ii. Any and all accrued salaries, overtime pay, vacation pay, holiday pay, accrued time off pay of any type, expenses and other employee compensation for both temporary and permanent employees of Seller payable up to the Closing Date unless otherwise assumed hereunder.
iii. FICA, withholding, and other payroll related taxes payable up to the Closing Date for any and all periods prior to the Closing Date.
iv. Sales tax obligations for any and all services rendered prior to the Closing Date.
v. Other taxes, fees and assessments payable by Seller or accrued as of the Closing Date.
vi. Audit or other similar adjustments, including any penalties or fines, related to FICA and other payroll taxes, sales taxes, retirement plan contributions, workers’ compensation insurance and similar expenses subject to audits and adjustments for occurrences and time periods prior to the Closing Date.
vii. Federal and state taxes on income earned by Seller prior to the Closing Date and accrued to or payable as of the Closing Date.
viii. Revolving credit line obligations or other short term bank borrowings, long term bank loans or installment payment debts of Seller.
ix. Notes and other financial instruments payable by Seller.
x. Any and all notes payable, advances, deferred compensation or other debts owed to Shareholders, or any other employee of, or contractor to, Seller, including any payments related to compensation, vacation pay, sick pay, fringe benefits, or reimbursable expenses related to the employment of, or services performed by, any of such individuals prior to the Closing Date.
xi. Any and all other liabilities of Seller existing as of the Closing Date and not specifically listed as being assumed by Buyer in Section 5a of this Agreement.
xii. Any contingent or unstated liabilities of Seller including, but not limited to, liabilities occurring as a result of legal actions, suits or other claims and resulting from actions or other occurrences which took place prior to the Closing Date.
c. All of the Assets shall be free of any liens, claims, liabilities, charges, restrictions, royalties, fees or other encumbrances other than (i) liens for Taxes which are not due and payable as of the Closing Date, (ii) the leases set forth on the Schedule of Lease Obligations at Exhibit 5-A1, (iii) the equipment leases, lease/purchase or maintenance agreements set forth on the Schedule of Equipment Leases at Exhibit 5-A2, and (iv) encumbrances which would not have a material adverse effect on the Business (collectively, the “Permitted Encumbrances”). No later than the Closing Date, the Seller shall secure written releases for the Assets acquired from the holder of any lien, security interest or other obligation of the Seller related to any lien, security interest or other encumbrance attaching to all or any category of the assets of Seller.
Notice of Certain Actions by Consent If in accordance with the provisions of the Declaration of Trust any action is taken by the Trustees by a written consent of less than all of the Trustees, then prompt notice of any such action shall be furnished to each Trustee who did not execute such written consent, provided that the effectiveness of such action shall not be impaired by any delay or failure to furnish such notice.
Survival of Certain Contract Terms Any provision of this Contract that imposes an obligation on a Party after termination or expiration of this Contract shall survive the termination or expiration of this Contract and shall be enforceable by the other Party.
Effect of Certain Resolutions Neither the settlement or termination of any Proceeding nor the failure of the Company to award indemnification or to determine that indemnification is payable shall create a presumption that Indemnitee is not entitled to indemnification hereunder. In addition, the termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, had reasonable cause to believe that Indemnitee’s action was unlawful.