Actions by the Sellers Upon termination of the Agreement (or any portion thereof) in accordance with this Article II, with respect to any Serviced Appointment subject to such termination, the Sellers may (A) terminate, or consent to the termination of, any Serviced Corporate Trust Contract relating to such Serviced Appointment, (B) sell, transfer, assign, or otherwise dispose of any such Serviced Appointment, or resign (or consent to removal) from any such Serviced Appointment, or (C) agree to do any of the foregoing.
Clean-Up Terminations by the Sellers (a) The Sellers shall have the right to elect to terminate this Agreement in the event that the remaining Serviced Appointments have generated LTM Fee Revenue that is less than 5% of the aggregate fee revenue generated by all Appointments that are Serviced Appointments as of January 1, 2024 in the twelve-month period prior to January 1, 2024.
(b) In the event the Sellers elect to terminate this Agreement pursuant to clause (a) above, the Sellers shall, concurrently with such termination, pay to the Purchasers an amount equal to LTM Fee Revenue multiplied by 1.40.
(c) For purposes of this Agreement, “LTM Fee Revenue” means the fee revenue (excluding net interest income but including money market fund fees) generated by all remaining Serviced Appointments in the last full twelve-month period prior to the time the Sellers elect to exercise their termination right pursuant to this Section 7.2.2.
Deliveries by the Seller At the Closing, the Seller shall deliver or cause to be delivered to the Purchasing Parties:
(a) an Instrument of Assignment and Bxxx of Sale substantially in the form attached as Exhibit A, duly executed by the Seller (the "Instrument of Assignment and Bxxx of Sale");
(b) a special warranty deed ("Deed") in recordable form relating to the Owned Real Property substantially in the form attached as Exhibit B;
(c) a Trademark Assignment substantially in the form attached as Exhibit C (the "Trademark Assignment") and a Patent Assignment substantially in the form attached as Exhibit D (the "Patent Assignment"), each duly executed by the Seller;
(d) an Assumption Agreement substantially in the form attached as Exhibit E (the "Assumption Agreement"), duly executed by the Seller;
(e) a Transition Services Agreement substantially in the form attached as Exhibit F (the "Transition Services Agreement"), duly executed by the Seller;
(f) a License Agreement substantially in the form attached as Exhibit G (the "License Agreement"), duly executed by the Seller;
(g) a certificate, dated the Closing Date and signed by a senior officer of the Seller, certifying the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(c);
(h) a certificate of good standing of the Seller from the Secretary of State of the State of Delaware;
(i) a certificate of the Secretary of the Seller certifying as accurate and complete as of the Closing certain resolutions adopted by the Board of Directors of the Seller approving the execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the Transactions;
(j) UCC termination statements, if any, and any other necessary documents that, when filed on the Closing Date, will be sufficient to release all Liens (other than Permitted Liens) on the Assets;
(k) a certificate of non-foreign status as provided in U.S. Department of Treasury Regulation Section 1.1445-2(b); and
(l) all other previously undelivered documents required to be delivered by the Seller to the Purchasing Parties at or prior to the Closing pursuant to this Agreement.
Covenants of the Sellers Each Seller, severally and not jointly, covenants with each Underwriter as follows:
(a) Each Seller will deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
Covenants of the Seller The Seller covenants with the Purchaser as follows:
(a) with respect to the Mortgage Loans (other than any Outside Serviced Mortgage Loan), it shall record and file, or cause a third party on its behalf to record and file, in the appropriate public recording office for real property records or UCC financing statements, as appropriate, each related assignment of Mortgage and assignment of Assignment of Leases, and each related UCC-3 financing statement referred to in the definition of Mortgage File, in each case in favor of the Trustee, as and to the extent contemplated under Section 2.01(c) of the Pooling and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments of Assignment of Leases, assignments of Mortgage and financing statements shall be paid by (or caused to be paid by) the Seller. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Seller shall promptly prepare or cause the preparation of a substitute therefor or cure such defect or cause such defect to be cured, as the case may be, and the Seller shall record or file, or cause the recording or filing of, such substitute or corrected document or instrument, or with respect to any assignments that a third party on the Seller’s behalf has agreed to record or file as described in the Pooling and Servicing Agreement, the Seller shall deliver such substitute or corrected document or instrument to such third party (or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing Agreement, the then holder of such Mortgage Loan);
(b) as to each Mortgage Loan (except with respect to any Outside Serviced Mortgage Loan), if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3), (6) (if recorded) and (15) of the definition of “Mortgage File” in the Pooling and Servicing Agreement solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller or the title agent to be a true and complete copy of the original thereof submitted for recording. The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC-3 assignment referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the Seller shall deliver or cause the delivery of the recorded/filed original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the Seller or its designee shall obtain and provide to the Custodian a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof;
(c) except for actions that are the express responsibility of another party hereunder or under the Pooling and Servicing Agreement, it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans (other than any Outside Serviced Mortgage Loan) to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders and any related Serviced Companion Loan Holder(s). Notwithstanding the foregoing, this Section 5(c) shall not apply with respect to any Outside Serviced Mortgage Loan;
(d) the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for the CREFC® Financial File and the CREFC® Loan Periodic Update File that are required to be prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement;
(e) if (during the period of time that the Underwriters are required, under applicable law, to deliver a prospectus related to the Public Certificates in connection with sales of the Public Certificates by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the Closing Date, which event causes there to be an untrue statement of a material fact with respect to the Seller Information (as such term is defined in the Indemnification Agreement) in the Prospectus, the Offering Circular or any Loan-Specific Offering Circular (the Prospectus, the Offering Circular and any Loan-Specific Offering Circular are collectively referred to herein as the “Offering Documents”), or causes there to be an omission to state therein a material fact with respect to the Seller Information required to be stated therein or necessary to make the statements therein with respect to the Seller Information, in the light of the circumstances under which they were made, not misleading, then the Seller shall promptly notify the Dealers and the Depositor. If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Offering Documents in order to correct the untrue statement, or to make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that such amendment or supplement solely relates to the Seller Information) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the Offering Documents as may be necessary so that the Seller Information in the Offering Documents, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be misleading and will comply with applicable law. The Seller has executed and delivered, or is required to execute and deliver, the Indemnification Agreement, dated as of the first pricing date with respect to the Certificates, between, among others, the Dealers, the Seller and the Depositor (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”) covering the Seller Information in the Offering Documents. Notwithstanding the foregoing, the Seller shall have no affirmative obligation to monitor the performance of the Mortgage Loans or any changes in condition or circumstance of any Mortgaged Property, Mortgagor, guarantor or any of their Affiliates after the Closing Date in connection with its obligations under this Section 5(e);
(f) for so long as the Trust Fund is subject to the reporting requirements of the Exchange Act, the Seller shall: (1) provide the Depositor and the Certificate Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information for which the Seller is responsible as indicated on Exhibit U, Exhibit V and Exhibit Z to the Pooling and Servicing Agreement within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting obligations under Item 1119 of Regulation AB, upon reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant; and (2) reasonably cooperate with each of the Depositor, the Master Servicer and the Certificate Administrator, upon the reasonable request of such party, by providing all Mortgage Loan related documents, data and information in the possession of the Seller at or prior to the Closing Date and on the date of such request and necessary for the ongoing compliance by the Depositor and the Trust with the requirements of Form 10-D with respect to Items 1111 and 1125 of Regulation AB; provided, that the Seller shall not be required to provide any documents that are proprietary to the related originator or the Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis;
(g) within sixty (60) days after the Closing Date, the Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan (other than any related Trust Subordinate Companion Loan) to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified) to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably requested by the Depositor;
(h) within sixty (60) days after the Closing Date, the Seller shall provide the Depositor (with a copy to each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, the Controlling Class Representative, the Asset Representations Reviewer and the Operating Advisor) with a certification by an authorized officer of the Seller, substantially in the form of Exhibit F to this Agreement, that the electronic copy of the Diligence File for each Mortgage Loan uploaded to the Designated Site contains all documents required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably requested by the Depositor, which such certification or copies thereof may be sent via email;
(i) upon written request of the Asset Representations Reviewer (in the event that the Asset Representations Reviewer reasonably determines that any Review Materials made available or delivered to the Asset Representations Reviewer are missing any documents required to complete any Test for a Mortgage Loan (other than any related Trust Subordinate Companion Loan) that is a Delinquent Loan), the Seller shall provide to the Asset Representations Reviewer within ten (10) Business Days of receipt of such written request (which time period may be extended upon the mutual agreement of the Seller and the Asset Representations Reviewer), such documents requested by the Asset Representations Reviewer and in the possession of the Seller relating to each such Delinquent Loan to enable the Asset Representations Reviewer to complete any Test for each such Delinquent Loan, but only to the extent such documents are in the possession of the Seller; provided that the Seller shall not be required to provide any documents that are proprietary to the related originator or the Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis;
(j) upon the completion of an Asset Review with respect to each Mortgage Loan (other than any related Trust Subordinate Companion Loan) that is a Delinquent Loan and receipt by the Seller of a written invoice from the Asset Representations Reviewer, the Seller shall pay to the Asset Representations Reviewer, within forty-five (45) days after receipt of such written invoice, the Asset Representations Reviewer Asset Review Fee with respect to such Delinquent Loan as set forth in Section 11.02(b) of the Pooling and Servicing Agreement, subject to adjustment with respect to any Co-sponsored Mortgage Loan(s), as set forth in Section 11.02(b) of the Pooling and Servicing Agreement;
(k) if the Preliminary Asset Review Report indicates that any of the representations and warranties fails or is deemed to fail any Test, the Seller shall have 90 days from receipt of the Preliminary Asset Review Report (the “Cure/Contest Period”) to remedy or otherwise refute the Test failure indicated in the Preliminary Asset Review Report. If the Seller elects to refute the Test failure indicated in the Preliminary Asset Review Report, the Seller shall provide to the Special Servicer and the Asset Representations Reviewer any documents or any explanations to support (i) a conclusion that a subject representation and warranty has not failed a Test or (ii) a claim that any missing documents in the Review Materials are not required to complete a Test;
(l) the Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and Servicing Agreement with respect to any Mortgage Loan that is not a Trust Subordinate Companion Loan, the Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to the resolution method;
(m) the Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon (i) any failure of the Seller to pay the fees described under Section 5(j) above within 90 days of written request by the Asset Representations Reviewer or (ii) any failure by the Seller to provide all documents required to be delivered by it pursuant to Sections 5(g) and 5(i) of this Agreement and under the definition of “Diligence File” in the Pooling and Servicing Agreement within 60 days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement); and
(n) with respect to any Mortgage Loan that is (or may become pursuant to the related Co-Lender Agreement) part of an Outside Serviced Whole Loan, (x) in the event that the Closing Date occurs on or prior to the closing date of the related Outside Securitization Trust (such event, the “Outside Securitization”), the Seller shall provide (or cause to be provided) to the Depositor (and counsel thereto) and the Certificate Administrator (i) written notice in a timely manner of (but no later than three (3) Business Days prior to) the closing date of such Outside Securitization, and (ii) no later than one (1) Business Day after the closing date of such Outside Securitization, a copy of the Outside Servicing Agreement in an XXXXX-compatible format, and (y) in the event that the Closing Date occurs after the closing date of the Outside Securitization, the Seller shall provide, or cause the Outside Depositor to provide, the Depositor (and counsel thereto) with a copy of the related Outside Servicing Agreement (together with any amendments thereto) in an XXXXX-compatible format by the later of (i) two (2) Business Days prior to the Closing Date and (ii) one (1) Business Day after the closing date of such Outside Securitization.
Indemnification by the Seller The Seller shall indemnify each Affected Person, within ten (10) days after demand therefor, for the full amount of any (I) Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Affected Person or required to be withheld or deducted from a payment to such Affected Person and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority and (II) Taxes (other than Excluded Taxes) that arise because an Investment or any Capital is not treated for U.S. federal, state or local income and franchise tax purposes consistently with the Intended Tax Treatment (such indemnification will include any U.S. federal, state or local income and franchise taxes necessary to make such Affected Person whole on an after-Tax basis taking into account the taxability of receipt of payments under this clause (II) and any reasonable expenses (other than Taxes) arising out of, relating to, or resulting from the foregoing). Promptly upon having knowledge that any such Indemnified Taxes have been levied, imposed or assessed, and promptly upon notice by the Administrative Agent or any Affected Person, the Seller shall pay such Indemnified Taxes directly to the relevant taxing authority or Governmental Authority (or to the Administrative Agent or such Affected Person if such Taxes have already been paid to the relevant taxing authority or Governmental Authority); provided that neither the Administrative Agent nor any Affected Person shall be under any obligation to provide any such notice to the Seller. A certificate as to the amount of such payment or liability delivered to the Seller by an Affected Person (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of an Affected Person, shall be conclusive absent manifest error. Notwithstanding anything to the contrary herein, the Servicer shall indemnify each Affected Person for the full amount of any Taxes described in clause (I) or clause (II) of this Section 4.03(c) to the extent that the Seller and its Affiliates have not already indemnified such Affected Person for such Taxes and without limiting any obligation of the Seller and its Affiliates to do so.
Indemnities by the Seller Without limiting any other rights that the Administrator, any Purchaser Agent, any Purchaser, any Liquidity Provider, any other Program Support Provider, the Program Administrator or any of their respective Affiliates, agents, employees, officers, and directors (each, an “Indemnified Party”) may have hereunder or under applicable Law, the Seller hereby agrees to indemnify each Indemnified Party and hold each Indemnified Party harmless from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively referred to as “Indemnified Amounts”) arising out of or resulting from this Agreement, the use of proceeds of Purchases or Reinvestments, or any interest therein, or the purchase of the Purchased Interest or in respect of any Pool Receivable, Related Security or Contract, or in respect of any other Transaction Document except (a) to the extent resulting from fraud, gross negligence or willful misconduct on the part of such Indemnified Party; (b) for which indemnification would constitute recourse (except as otherwise specifically provided in this Agreement to be paid by the Seller hereunder) for uncollectible Receivables; and (c) in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Without limiting the foregoing, but subject to the exclusions set forth in the preceding sentence, the Seller shall pay within five (5) Business Days after written demand (which demand shall be accompanied by documentation of the Indemnified Amounts, in reasonable detail) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:
(i) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivables to be an Eligible Receivable as of the date of such calculation, the failure of any information contained in any Information Package to be true and correct, or the failure of any other information required to be provided to any Purchaser, Purchaser Agent or the Administrator with respect to the Receivables or this Agreement to be true and correct;
(ii) the failure of any representation or warranty made or deemed made by the Seller (or any of its officers, employees or agents) under or in connection with this Agreement, any other Transaction Document to have been true and correct as of the date made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the failure of any Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Administrator, for the benefit of each Purchaser Group, First Priority Interest in the Pool Assets to the extent required under this Agreement;
(v) any commingling of funds to which the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to such Receivable or the furnishing or failure to furnish such goods or services or relating to collection activities with respect to such Receivable or any Contract related thereto (if such collection activities were performed by the Seller or any of its Affiliates or by any agent or independent contractor retained by the Seller or any of its Affiliates);
(vii) any failure of the Seller to perform its duties or obligations in accordance with the provisions hereof, any other Transaction Document or under the Contracts;
(viii) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Pool Receivable or the related Contract;
(ix) the use of proceeds of Purchases or Reinvestments;
(x) the failure of the Seller to pay when due any Taxes, energy surcharges or other governmental charges payable by the Seller in connection with any of the Pool Receivables or this Agreement;
(xi) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents or the ownership of the Pool Receivables or any Pool Assets;
(xii) any failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box Agreement;
(xiii) any action taken by the Seller, the Servicer or any Originator (or any of their respective Affiliates) in the enforcement or collection of any Pool Receivable;
(xiv) in the case of a Retail Receivable, the failure or delay in providing any Obligor with an invoice or other evidence of indebtedness; or
(xv) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Deliveries by the Sellers Simultaneously herewith, the Sellers are delivering or causing to be delivered to the Purchaser the following:
(a) A certificate, dated as of the date hereof and signed on behalf of the Company by its Secretary or other authorized officer, as to the Company Resolutions (as defined below);
(b) Copies of any and all third party consents obtained in connection with the transactions contemplated by this Agreement;
(c) A fully executed copy of the amendment to, or extension of, the Dealer Agreement, dated May 1, 2000, xxxxxxx Xxxxxxxx Xxxxxx Corporation and Sxxxxxx Atlantic Corporation;
(d) All stock certificates representing the Purchased Shares and stock powers duly executed by each Seller or other instruments of transfer reasonably requested by the Purchaser evidencing the transfer and assignment of the Purchased Shares to the Purchaser;
(e) A copy of a written resignation notice duly executed and delivered to the Company by Mxxxxxx Xxxxxxx relating to his resignation as Chairman, Chief Executive Officer and President of the Company but not from any other position with the Company or any of its Subsidiaries;
(f) A copy of the agreement or other instrument terminating that certain Stockholders Agreement, dated December 2, 2013, between the Sellers (the “Sxxxxxx Stockholders Agreement”), duly executed by each Seller;
(g) The Stockholders Agreement by and among the Purchaser, Hxxxx X. Xxxxxx and each Seller in substantially the form attached hereto as Exhibit A (the “Purchaser-Sellers Stockholders Agreement”), duly executed by each Seller; and
(h) The Non-Competition and Non-Solicitation Agreement by Mxxxxxx Xxxxxxx in favor of the Company and the Purchaser (the “Non-Competition and Non-Solicitation Agreement”) in form and substance reasonably acceptable to each of Mxxxxxx Xxxxxxx, the Company and the Purchaser, duly executed by Mxxxxxx Xxxxxxx and, on behalf of the Company, another authorized officer of the Company.
Indemnification by the Sellers Each of the Sellers, severally and jointly, shall indemnify, defend and hold harmless, without duplication, the Purchasers, each of the Purchasers’ Affiliates and each of their respective officers, employees, agents and representatives (collectively, the “Purchaser Indemnified Parties,” and together with the Seller Indemnified Parties, the “Indemnified Parties”), from and against all Losses that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly, arise out of or relate to (a) any failure by the Sellers to perform their obligations under this Agreement in accordance with the terms hereof, or any other breach or violation by the Sellers of the terms hereof, (b) the exercise by the Sellers of any right, power or discretion in relation to a Serviced Appointment, including (i) with respect to any Retained Duties (except to the extent the Sellers were acting in accordance with the instructions of the Purchasers in performing the Retained Duties or were acting as backup advancing agent pursuant to clause (c) of the definition of “Retained Duty”; provided that Sellers shall indemnify the Purchaser Indemnified Parties from and against all Losses that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly, arise out of or relate to any Losses arising out of or relate to the Sellers’ negligent failure to make a backup advance as required pursuant to such Retained Duty) or (ii) with respect to any Excluded Appointment, the matters for which Seller and its Affiliates are responsible pursuant to Section 3.9 and (c) any action taken or omitted to be taken by the applicable Purchaser pursuant to and in accordance with a written direction given by any Seller (other than pursuant to Section 3.4.6), including any Specified Action taken (or omitted to be taken) by the Purchasers at the direction of the Sellers pursuant to Section 3.9, in each case of this clause (c) except to the extent the applicable Purchaser was negligent in taking or omitting to take such action.
Termination by the Sellers The Sellers may terminate the Agreement in the event either Purchaser or the Guarantor (if any of the proceedings with respect to the Guarantor in the following clauses (i) through (iv) below would reasonably be expected to impair the ability of either Purchaser to perform its obligations under the Agreement (including Article 8 of the Agreement and this Annex A) fully and on a timely basis) (i) becomes the subject of any bankruptcy or other proceeding relating to its liquidation or insolvency (if not dismissed within sixty (60) days of initial filing), or is the subject of a receivership or conservatorship, (ii) files a voluntary petition in bankruptcy or similar proceeding or admits in writing its inability to pay its debts as they become due, (iii) makes a general assignment for the benefit of creditors, or (iv) files a petition or an answer seeking reorganization or an arrangement with creditors.
