Like-Kind Exchange Seller and Purchaser hereby agree that this transaction may be completed as a like-kind exchange and that each party will assist in completing the sale as a like-kind exchange. As a like-kind exchange, Seller and Purchaser agree that Purchaser, in lieu of the purchase of the Assets from Seller for the consideration provided herein, shall have the right at any time prior to Closing to assign all or a portion of its rights under this Agreement to a Qualified Intermediary (as that term is defined in Section 1.1031(k)-1(g)(4)(v) of the Treasury Regulations) or an Exchange Accommodation Titleholder (as that term is defined in Rev. Proc. 2000-37, 2000-2 C.B. 308) in order to accomplish the transaction in a manner that will comply, either in whole or in part, with the requirements of a like-kind exchange pursuant to Section 1031 of the Code. Likewise, Seller shall have the right at any time prior to Closing to assign all or a portion of its rights under this Agreement to a Qualified Intermediary for the same purpose. In the event either party assigns its rights under this Agreement pursuant to this Section 8.6, such party agrees to notify the other party in writing of such assignment at or before Closing. If Seller assigns its rights under this Agreement for this purpose, Purchaser agrees to (i) consent to Seller’s assignment of its rights in this Agreement in the form reasonably requested by the Qualified Intermediary, and (ii) pay the portion of the Estimated Final Purchase Price attributable to the Assets into a qualified escrow or qualified trust account at Closing as directed in writing. If Purchaser assigns its rights under this Agreement for this purpose, Seller agrees to (i) consent to Purchaser’s assignment of its rights in this Agreement in the form reasonably requested by Purchaser’s Qualified Intermediary or Exchange Accommodation Titleholder, (ii) refund to Purchaser the Performance Deposit previously deposited by Purchaser pursuant to this Agreement upon the Qualified Intermediary’s or Exchange Accommodation Titleholder’s payment to Seller of a replacement Performance Deposit in the same amount, (iii) accept the Estimated Final Purchase Price (as may be adjusted under the terms of this Agreement) for the Assets from the account designated by Purchaser’s Qualified Intermediary or Exchange Accommodation Titleholder at Closing, and (iv) at Closing, convey and assign directly to Purchaser or Purchaser’s Exchange Accommodation Titleholder (as directed in writing) the Assets which are the subject of this Agreement upon satisfaction of the other conditions to Closing and other terms and conditions hereof. Seller and Purchaser acknowledge and agree that any assignment of this Agreement shall not increase the costs, expenses or liabilities of a party as a result of the other party’s assignment of this Agreement to a Qualified Intermediary or Exchange Accommodation Titleholder, shall not release either party from any of their respective liabilities and obligations to each other under this Agreement, and that neither party represents to the other that any particular tax treatment will be given to either party as a result thereof.
Shift Exchange The Employer and the Union agree that shift exchanges are a useful process to allow employees more flexibility and improved work/life balance. Employees within an institution who have the same job classification will be allowed to exchange full shifts for positions in which they are qualified. The shift exchange process will not be used to circumvent the bid system or the supervisory chain of command. Shift exchanges will be in accordance with the following:
A. Request for shift exchanges will be submitted seven (7) calendar days in advance of the exchange, when practicable.
B. Requests for shift exchanges will be considered on a case-by-case basis. The requested shift exchange is voluntary, and is agreed to in writing by both employees, and approved in writing by the supervisor(s). Requests for shift exchanges will be submitted to the appropriate Appointing Authority or designee for approval.
X. Xxxxx exchanges may be denied. If denied, the employee will be provided the reason(s) in writing.
D. Employees will not submit requests for shift exchanges which would result in overtime. Each employee will be considered to have worked their regular schedule.
E. For shift exchanges that occur on an employee’s designated holiday, the employee who is regularly scheduled to work on that holiday will receive the holiday compensation, regardless of who physically worked on that day.
F. The failure of an employee who has exchanged shifts to work the agreed upon shift without appropriate cause may be a basis for disciplinary action.
Tax Deferred Exchange Buyer and Seller respectively acknowledge that the purchase and sale of the Property contemplated hereby may be part of a separate exchange (an “Exchange”) being made by each party pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated with respect thereto. In the event that either party (the “Exchanging Party”) desires to effectuate such an exchange, then the other party (the “Non-Exchanging Party”) agrees to cooperate fully with the Exchanging Party in order that the Exchanging Party may effectuate such an exchange; provided, however, that with respect to such Exchange (a) all additional costs, fees and expenses related thereto shall be the sole responsibility of, and borne by, the Exchanging Party; (b) the Non-Exchanging Party shall incur no additional liability as a result of such exchange; (c) the contemplated exchange shall not delay any of the time periods or other obligations of the Exchanging Party hereby, and without limiting the foregoing, the scheduled date for Closing shall not be delayed or adversely affected by reason of the Exchange; (d) the accomplishment of the Exchange shall not be a condition precedent or condition subsequent to the Exchanging Party's obligations under the Agreement; and (e) the Non-Exchanging Party shall not be required to hold title to any land other than the Property for purposes of the Exchange. The Exchanging Party agrees to defend, indemnify and hold the Non-Exchanging Party harmless from any and all liability, damage or cost, including, without limitation, reasonable attorney's fees that may result from Non-Exchanging Party's cooperation with the Exchange. The Non-Exchanging Party shall not, by reason of the Exchange, (i) have its rights under this Agreement, including, without limitation, any representations, warranties and covenants made by the Exchanging Party in this Agreement (including but not limited to any warranties of title, which, if Seller is the Exchanging Party, shall remain warranties of Seller), or in any of the closing documents (including but not limited to any warranties of title, which, if Seller is the Exchanging Party, shall remain warranties of Seller) contemplated hereby, adversely affected or diminished in any manner, or (ii) be responsible for compliance with or deemed to have warranted to the Exchanging Party that the Exchange complies with Section 1031 of the Code.
Tax Free Exchange If Seller elects to close the sale of the Property as part of a Section 1031 tax-free exchange, Purchaser agrees to cooperate with Seller as reasonably requested, so long as Purchaser is not required to enter into the chain of title of any property other than the Property or to incur any costs, expense obligations or liabilities with reference to such exchange or exchange property or properties, the party performing such exchange shall bear all costs and expenses generated by such election (including, but not limited to, any increase in legal fees associated therewith), and the Closing Deadline is not delayed, and the Purchase Price is not affected. Seller and Purchaser agree that (i) Seller may assign its right, title and interest in this Agreement to a qualified intermediary in order to facilitate a deferred like-kind exchange, provided that such assignment does not release Seller from its obligations hereunder; (ii) that Purchaser shall have no recourse whatsoever against the qualified intermediary under this Agreement; and (iii) Purchaser shall execute any and all documents reasonably necessary to consummate the assignment of Seller’s right, title and interest in this Agreement to the qualified intermediary. If Purchaser elects to close the sale of the Property as part of a Section 1031 tax-free exchange, Seller agrees to cooperate with Purchaser as reasonably requested, so long as Seller does not incur any additional costs, the Closing Deadline is not delayed, and the Purchase Price is not affected. Seller and Purchaser agree that (i) Purchaser may assign its right, title and interest in this Agreement to a qualified intermediary in order to facilitate a deferred like-kind exchange, provided that such assignment does not release Purchaser from its obligations hereunder; (ii) that Seller shall have no recourse whatsoever against the qualified intermediary under this Agreement; and (iii) Seller shall execute any and all documents necessary to consummate the assignment of Purchaser’s right, title and interest in this Agreement to the qualified intermediary.
Optional Exchange (a) The terms and conditions, if any, of an Optional Exchange will be specified in the related Supplement; provided, however, that any right of Optional Exchange shall be exercisable only to the extent that the Depositor provides upon the Trustee's request an Opinion of Counsel that (i) such exchange would not be inconsistent with continued satisfaction of the applicable requirements for exemption under Rule 3a-7 (or other applicable rule or exemption) under the Investment Company Act of 1940, as amended, and all applicable rules, regulations and interpretations thereunder and (ii) such exchange would not affect the characterization of the Trust as a "grantor trust" under the Code. The terms of an Optional Exchange may include, but are not limited to, the following:
(i) a requirement that the exchanging Holder tender to the Trustee Certificates of each Class within such Series;
(ii) a minimum Certificate Principal Balance or Notional Amount, as applicable, with respect to Certificates being tendered for exchange by a single Holder;
(iii) a requirement that the Certificate Principal Balance or Notional Amount, as applicable, of each Certificate tendered for exchange be an Authorized Denomination;
(iv) specified dates on which a Holder may effect such an Optional Exchange (each, an "Optional Exchange Date"), as specified in the applicable Supplement;
(v) limitations on the right of an exchanging Holder to receive any benefit upon Optional Exchange from any Credit Support; and
(vi) adjustments to the value of the proceeds of any Optional Exchange based upon required prepayment of future expense allocations and the establishment of a reserve for any unanticipated Extraordinary Trust Expenses.
(b) Unless otherwise provided in the applicable Supplement, no Certificate may be exchanged pursuant to this Section 4.07 unless the Trustee has received at least 30 days (or such shorter period acceptable to the Trustee or specified in the applicable Supplement) but not more than 45 days prior to an Optional Exchange Date a telegram, telex, facsimile transmission or letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc., the Depository (in accordance with its normal procedures) or a commercial bank or trust company in the United States setting forth the name of the Holder, the Certificate Principal Balance or Notional Amount of such Registered Certificate to be exchanged and the number or a description of the tenor and the terms of such Certificate, a statement that the Optional Exchange is being exercised thereby and an assurance that the Registered Certificate to be exchanged with the form entitled "Option to Elect Exchange" on the reverse of the Registered Certificate duly completed will be received by such Trustee not later than five Business Days after the date of such telegram, telex, facsimile transmission or letter, and such Certificate and form duly completed must be received by such Trustee by such fifth Business Day. Any tender by the Holder thereof for Optional Exchange shall be irrevocable. Unless otherwise provided in the applicable Supplement, the Optional Exchange option may be exercised pursuant to this Section 4.07 by the Holder of a Certificate for less than the aggregate Certificate Principal Balance or Notional Amount of such Certificate as long as the Certificate Principal Balance or Notional Amount remaining Outstanding after such Optional Exchange is an Authorized Denomination and all other requirements set forth in the related Supplement are satisfied. Upon such partial exchange, such Certificate shall be cancelled and a new Certificate or Certificates for the remaining Certificate Principal Balance or Notional Amount thereof shall be issued (which shall be in the name of the Holder of such exchanged Certificate).
(c) Upon the completion of any such Optional Exchange, the Trustee shall give prompt written notice thereof to each Rating Agency.
The Exchange (a) The Company agrees, promptly upon the satisfaction of the conditions set forth in Section 2 below, to repay the Subordinated Notes by delivering to the Note Holders the following (the “Exchange Consideration”):
(i) a number of shares of Preferred Stock having an aggregate liquidation preference equal to $12.8 million (the “Exchange Preferred Shares”); and
(ii) a number of shares of Common Stock having a Fair Market Value (as defined below), rounded to the nearest whole number of shares, equal to (x) the outstanding principal amount of the Subordinated Notes on the date of closing of the transactions contemplated by this Agreement (the “Closing Date”), plus (y) all accrued and unpaid interest on the Subordinated Notes on the Closing Date, minus (z) $12.8 million (the “Exchange Common Shares” and, together with the Exchange Preferred Shares, the “Exchange Shares”).
(b) The Note Holders agree to accept the Exchange Consideration as full repayment of all amounts outstanding on the Subordinated Notes. Upon the payment of the Exchange Consideration, the Note Holders will xxxx the Subordinated Notes “Paid in Full” and surrender the Subordinated Notes to the Company. Furthermore, upon the payment of the Exchange Consideration, any security interest held by the Note Holders to secure the repayment of the Subordinated Notes will automatically be released, and the Note Holders hereby irrevocably designate the Company as their attorney-in-fact for the purpose of executing and filing any UCC-3 termination statements in connection with such release.
(c) Nothing in this Agreement will be deemed to modify or amend the terms of the Subordinated Notes, and, until the Subordinated Notes have been repaid in full in accordance with Section 1(a), the Company will, subject to any applicable subordination provisions, continue to comply with its obligations under the Subordinated Notes in accordance with its terms. Without limiting the generality of the foregoing, subject to any applicable subordination provisions, the Company will continue to pay interest on the Subordinated Notes and will make any mandatory prepayments required to be made under the terms of the Subordinated Notes.
(d) The Exchange Consideration to be delivered to the Note Holders will be allocated between the Note Holders in proportion to the respective outstanding principal amounts of the Subordinated Notes held by such Note Holders. At the Closing, the Company will deliver the Exchange Consideration to the Note Holders, free and clear of any liens or security interests.
(e) For purposes of this Agreement, the “Fair Market Value” of one share of Common Stock is equal to the volume weighted average price per share of the Common Stock on the NASDAQ Capital Market during the last ten trading days immediately preceding the Effective Date.
(f) For the avoidance of doubt, neither of the Note Holders will be entitled to receive any of the Exchange Shares or any beneficial ownership thereof at any time until all of the conditions set forth in Section 2 have been satisfied or waived by the applicable Party.
(g) The Exchange Preferred Shares will have rights and preferences substantially similar to the rights and preferences set forth on Exhibit A attached hereto. The Company may, but is not required to, issue additional shares of preferred stock of the same preferred stock series as the Exchange Preferred Shares in one or more public offerings or private placements. In connection with the first such offering for cash of the same series of preferred stock as the Exchange Preferred Shares to occur after the date hereof, the Company will modify (without being required to obtain the consent of the holders of the Exchange Preferred Shares) the provisions of the Exchange Preferred Shares to be appropriate for that type of offering, and the holders of the Exchange Preferred Shares will be entitled to comparable and proportionate rights, together with the subsequent purchasers of such new shares in such offering. There is no assurance that any additional shares of preferred stock (or any Public Preferred Stock, as defined below) will be issued or that a trading market will develop for such shares. Furthermore, there is no assurance that shares of preferred stock issued by the Company in a different series of preferred stock will have rights and preferences similar to the Exchange Preferred Shares. Depending upon market conditions and other factors at the time that any shares of Public Preferred Stock are issued, the rights, designations and preferences of shares of Public Preferred Stock may differ from the rights, designations and preferences of the Exchange Preferred Shares.
Shift Exchanges In no event shall any overtime be payable as a result of employees voluntarily exchanging shifts.
Transfer and Exchange When Securities of a Series are presented to the Registrar with a request to register the transfer thereof, the Registrar shall register the transfer as requested if the requirements of applicable law are met, and when such Securities of a Series are presented to the Registrar with a request to exchange them for an equal principal amount of other authorized denominations of Securities of the same Series, the Registrar shall make the exchange as requested. To permit transfers and exchanges, upon surrender of any Security for registration of transfer at the office or agency maintained pursuant to Section 2.4, the Company shall execute and the Trustee shall authenticate Securities at the Registrar’s request. If Securities are issued as Global Securities, the provisions of Section 2.15 shall apply. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Registrar or a co-registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar or a co-registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. Any exchange or transfer shall be without charge, except that the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Section 2.11, 3.6 or 8.5. The Trustee shall not be required to register transfers of Securities of any Series, or to exchange Securities of any Series, for a period of 15 days before the record date for selection for redemption of such Securities. The Trustee shall not be required to exchange or register transfers of Securities of any Series called or being called for redemption in whole or in part, except the unredeemed portion of such Security being redeemed in part.
Transfer and Exchange of Global Warrants (i) Registration of the transfer and exchange of Global Warrants or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Agreement and the Warrant Certificates and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Warrant (or the relevant Agent Member on behalf of such transferor) shall deliver to the Warrant Agent (x) a written order given in accordance with the Depositary’s procedures containing information regarding the account of the Agent Member to be credited with a beneficial interest in the Global Warrant and (y) a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed by the Holder thereof or by his attorney, duly authorized in writing. Additionally, prior to the Holder registering the transfer or making the exchange as requested, the requirements for such transfer or exchange to be issued in a name other than the registered Holder shall be met. Such requirements include, inter alia, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association, and any other reasonable evidence of authority that may be required by the Warrant Agent. Upon satisfaction of the conditions in this Clause (i), the Warrant Agent shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Agent Member specified in such instructions a beneficial interest in the Global Warrant and to debit the account of the Agent Member making the transfer of the beneficial interest in the Warrant being transferred.
(ii) Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.05), a Global Warrant may only be transferred as a whole, and not in part, and only by (i) the Depositary, to a nominee of the Depositary, (ii) a nominee of the Depositary, to the Depositary or another nominee of the Depositary, or (iii) the Depositary or any such nominee to a successor Depositary or its nominee.
(iii) In the event that a Global Warrant is exchanged and transferred for Definitive Warrants pursuant to Section 2.05, such Warrants may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.04 and the requirements of any Warrant Certificate and such other procedures as may from time to time be adopted by the Company that are not inconsistent with the terms of this Agreement or of any Warrant Certificate.
Registered Exchange Offer (a) To the extent not prohibited by any applicable law or applicable interpretations of the Commission’s staff, the Company and the Guarantors shall prepare and, not later than 270 days following the Closing Date, shall use their commercially reasonable efforts to file with the Commission an Exchange Offer Registration Statement with respect to the Registered Exchange Offer. The Company and the Guarantors shall use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Act within 365 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such Holder is not an Affiliate of the Company or the Guarantors, acquires the New Securities in the ordinary course of such Holder’s business, has no arrangements with any person to participate in the distribution of the New Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such New Securities from and after their receipt without any limitations or restrictions under the Act. The Company and the Guarantors shall use their commercially reasonable efforts to complete the Registered Exchange Offer by the Target Registration Date.
(c) In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(i) mail or make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed or publicly disseminated by press release to the Holders (or longer if required by applicable law);
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Act until the end of the Exchange Offer Registration Period (including by supplementing and amending the Exchange Offer Registration Statement as required under the Act) to ensure that it is available for sales of New Securities by Exchanging Dealers, if any, during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to 5:00 p.m., New York time, on the last Business Day on which the Registered Exchange Offer is open;
(vi) include disclosure within the Exchange Offer Registration Statement or, prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and Guarantors are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling (pub. avail. July 2, 1993); and (B) representing that the Company and Guarantors have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that the Company and the Guarantors are not aware of any person that will participate in the Registered Exchange Offer with a view to distribute (within the meaning of the Act) the New Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Company and Guarantors shall:
(i) accept for exchange all Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for cancellation in accordance with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the Trustee to promptly authenticate and deliver to each Holder of Securities a principal amount of New Securities equal to the principal amount of the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Registered Exchange Offer to participate in a distribution of the New Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent and warrant to the Company and Guarantors that:
(i) any New Securities received by such Holder will be acquired in the ordinary course of such Holder’s business;
(ii) such Holder has no arrangement or understanding with any person to engage in, and such Holder is not engaged in, and does not intend to engage in, the distribution of the New Securities within the meaning of the Act;
(iii) such Holder is not a Broker-Dealer that will receive New Securities in the Registered Exchange Offer for Securities that such Holder purchased directly from the Company for resale pursuant to Rule 144A under the Act or any other available exemption from registration under the Act; and
(iv) such Holder is not an Affiliate of the Company or the Guarantors.
