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.
Assignment by the Company The rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Investor.
Delivery by the Company At the Closing, the Company shall register the Shares in the name of the Employee. Certificates relating to the Shares shall be held by the Secretary of the Company or his designee on behalf of the Employee.
Employment by the Company Executive agrees to be employed by the Company during the Term upon the terms and subject to the conditions set forth in this Agreement. Executive shall serve as an executive of the Company and shall have such duties as may be prescribed by the Company and shall serve in such other and/or additional position(s) as the Company may determine from time to time.
Deliveries by the Company (a) At the Closing, the Company shall deliver or cause to be delivered to Purchaser Sub:
(i) a certificate, dated as of the Closing Date, executed by the Company confirming the satisfaction of the conditions specified in Section 7.2(a) and Section 7.2(b);
(ii) a certification of non-foreign status reasonably acceptable to Parent, for purposes of Section 897 and 1445 of the Code;
(iii) duly executed counterparts by the Company or any Affiliate of the Company to each of the Ancillary Agreements applicable to the Closing; and
(iv) an Operational Duplicate IT System Certificate, executed by the Company, dated as of the Closing Date.
(b) At each Subsequent Closing and at the Distribution Center Closing, as applicable, the Company shall deliver or cause to be delivered to Purchaser Sub:
(i) the certificate described in Section 2.1(b)(i), dated as of each Subsequent Closing Date or Distribution Center Closing Date, as applicable, executed by the Company, each reference therein to “Closing Date” shall be deemed to be such Subsequent Closing Date or Distribution Center Closing Date, as applicable, solely with respect to the Acquired Stores or Distribution Centers (and Purchased Assets related thereto) to be transferred at such Subsequent Closing and the Distribution Center Closing (as applicable);
(ii) a certificate dated as of each Subsequent Closing Date or Distribution Center Closing Date, as applicable, executed by the Company regarding the accuracy of the matters set forth in Section 7.2(b) and, solely with respect to the first Subsequent Closing, Section 7.2(d) and where, for purposes of this Section 2.3(b)(ii), each reference therein to “Closing Date” in Section 7.2(b) and, solely with respect to the first Subsequent Closing, Section 7.2(d), as applicable, shall be deemed to be such Subsequent Closing Date or Distribution Center Closing Date, as applicable, solely with respect to the Acquired Stores or Distribution Centers (and Purchased Assets therein) to be transferred at such Subsequent Closing and the Distribution Center Closing (as applicable);
(iii) solely with respect to the first Subsequent Closing, the Operational Duplicate IT System Certificate, executed by the Company, dated as of the first Subsequent Closing Date;
(iv) a certification of non-foreign status reasonably acceptable to Parent, for purposes of Section 897 and 1445 of the Code; and
(v) duly executed counterparts by the Company or any Affiliate of the Company to each of the Ancillary Agreements applicable to such Subsequent Closing and the Distribution Center Closing.
Actions by the Company Any action, election or determination by the Board or any committee thereof pursuant to or relating to this Agreement will be effective if, and only if, it is taken or made by (or with the prior approval of) a majority of the members of the Board who are not at the time employees of Holdings or any of its Subsidiaries.
Payments by the Company The Company shall use its best efforts to obtain effectiveness of the Registration Statement as soon as practicable. If (i) the Registration Statement(s) covering the Registrable Securities required to be filed by the Company pursuant to Section 2(a) hereof is not filed by the Filing Date or declared effective by the SEC on or prior to one hundred and twenty (120) days from the Filing Date, or (ii) after the Registration Statement has been declared effective by the SEC, sales of all of the Registrable Securities cannot be made pursuant to the Registration Statement, or (iii) the Common Stock is not listed or included for quotation on the Nasdaq National Market ("NASDAQ"), the Nasdaq SmallCap Market ("NASDAQ SMALLCAP"), the New York Stock Exchange (the "NYSE") or the American Stock Exchange (the "AMEX") after being so listed or included for quotation, or (iv) the Common Stock ceases to be traded on the Over-the-Counter Bulletin Board (the "OTCBB") or any equivalent replacement exchange prior to being listed or included for quotation on one of the aforementioned markets, then the Company will make payments to the Investors in such amounts and at such times as shall be determined pursuant to this Section 2(c) as partial relief for the damages to the Investors by reason of any such delay in or reduction of their ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity). The Company shall pay to each holder of the Notes or Registrable Securities an amount equal to the then outstanding principal amount of the Notes (and, in the case of holders of Registrable Securities, the principal amount of Notes from which such Registrable Securities were converted) ("OUTSTANDING PRINCIPAL AMOUNT"), multiplied by the Applicable Percentage (as defined below) times the sum of: (i) the number of months (prorated for partial months) after the Filing Date or the end of the aforementioned one hundred and twenty (120) day period and prior to the date the Registration Statement is declared effective by the SEC, provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by the Investors in the Registration Statement with respect to information relating to the Investors, including, without limitation, changes to the plan of distribution, or to the failure of the Investors to conduct their review of the Registration Statement pursuant to Section 3(h) below in a reasonably prompt manner; (ii) the number of months (prorated for partial months) that sales of all of the Registrable Securities cannot be made pursuant to the Registration Statement after the Registration Statement has been declared effective (including, without limitation, when sales cannot be made by reason of the Company's failure to properly supplement or amend the prospectus included therein in accordance with the terms of this Agreement, but excluding any days during an Allowed Delay (as defined in Section 3(f)); and (iii) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the OTCBB, Nasdaq, Nasdaq SmallCap, NYSE or AMEX or that trading thereon is halted after the Registration Statement has been declared effective. The term "APPLICABLE PERCENTAGE" means two hundredths (.02). (For example, if the Registration Statement becomes effective one (1) month after the end of such one hundred and twenty (120) day period, the Company would pay $5,000 for each $250,000 of Outstanding Principal Amount. If thereafter, sales could not be made pursuant to the Registration Statement for an additional period of one (1) month, the Company would pay an additional $5,000 for each $250,000 of Outstanding Principal Amount.) Such amounts shall be paid in cash or, at the Company's option, in shares of Common Stock priced at the Conversion Price (as defined in the Notes) on such payment date.
Deliveries by the Seller At the Closing the Seller shall deliver the following instruments and documents to the Buyer or their designees:
(a) the Xxxx of Sale as provided in Section 1.1;
(b) copies of resolutions of the Seller's Board of Directors authorizing the execution of this Agreement and the consummation of the transactions and conveyance of Purchased Assets contemplated herein, which resolutions shall have been certified as true, correct and in full force and effect as of the Closing Date by the Secretary of the Seller;
(c) Deliver possession to Buyer at the Round Lake, Illinois, location of the Business, all Seller's books, records, documents and other written materials included as part of the Purchased Assets;
(d) the opinion of counsel provided for in Section 6.5;
(e) an executed counterpart to the Assumption Agreement as provided in Section 2.3;
(f) A certificate, dated as of the Closing Date ("Seller Closing Certificate") and executed by an officer of the Seller, certifying that (i) all representations and warranties of the Seller contained in this Agreement were true and accurate as of the date of this Agreement (unless such representations and warranties expressly speak as of a specific date other than the date hereof, and in any case, without giving effect to any standard, qualification or exception with respect to "materiality"), except as would not have a Material Adverse Effect and except for changes therein specifically permitted or contemplated by this Agreement or expressly consented to in writing by the Buyer; (ii) all of said representations and warranties are, by the execution and delivery of the Seller Closing Certificate, made again on and as of the Closing Date and are then true and accurate as though then made (unless such representations and warranties expressly speak as to a specific date other than the date thereof and, in any case, without giving effect to any standard, qualification or exception with respect to "materiality"), except as would not have a Material Adverse Effect and except for changes therein specifically permitted or contemplated by this Agreement or expressly consented to in writing by the Buyer); and (iii) the Seller has performed and complied in all material respects with all the covenants, agreements and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date;
(g) An executed counterpart to the Transition Services Agreement in the form attached hereto as Exhibit F (the "Transition Services Agreement"); and
(h) An executed counterpart to the Service and Installation Agreement.
Notice by the Company The Company shall give prompt written notice to a Responsible Officer of the Trustee at the Principal Office of the Trustee of any fact known to the Company that would prohibit the making of any payment of monies to or by the Trustee in respect of the Debentures pursuant to the provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Debentures pursuant to the provisions of this Article XV, unless and until a Responsible Officer of the Trustee at the Principal Office of the Trustee shall have received written notice thereof from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section at least 2 Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Debenture), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within 2 Business Days prior to such date. The Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder), to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Assignment by the Seller The Seller shall assign (exclusive of the Seller’s rights arising under Section 8.02(iii) and 8.03), its interest under this Agreement to the Depositor, which in turn shall assign such rights to the Trustee, and the Trustee then shall succeed to all rights of the Seller under this Agreement.