Actions by the Board Any and all determinations or other actions required of the Board hereunder that relate specifically to Executive’s employment by the Company or the terms and conditions of such employment shall be made by the members of the Board other than Executive if Executive is a member of the Board, and Executive shall not have any right to vote or decide upon any such matter.
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.
REPRESENTATIONS BY THE COMPANY The Company represents and warrants to the Subscriber that:
Partial Terminations by the Purchasers In the event so instructed by the Purchasers in writing after the Closing Date and at the Purchasers’ sole expense, each Seller shall execute documents prepared by the Purchasers and reasonably acceptable to such Seller resigning or appointing a successor Appointed Trustee under any Serviced Appointment for which such Seller acts as Appointed Trustee (other than with respect to any Serviced Appointment that is an Excluded Appointment), and shall reasonably cooperate, at the Purchasers’ sole expense, as instructed by the Purchasers, in finding a qualified successor Appointed Trustee, including executing any documents prepared by the Purchasers in connection with the application to a court of competent jurisdiction to appoint a successor Appointed Trustee.
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.
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.
Representations by the Issuer The Issuer represents and warrants to the Subscriber that as of the date of the closing of this Offering (the “Closing Date”):
2.1 The Issuer is a Limited Liability Company duly organized, validly existing and in good standing under the laws of the State of Delaware, authorized to do business in the State of Delaware and has the corporate power to conduct the business which it conducts and proposes to conduct.
2.2 The execution, delivery and performance of this Subscription Agreement by the Issuer have been duly authorized by the Issuer and all other corporate action required to authorize and consummate the offer and sale of the Interests has been duly taken and approved. This Subscription Agreement is valid, binding and enforceable against the Issuer in accordance with its terms; except as enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws or by legal or equitable principles relating to or limiting creditors’ rights generally, the availability of equity remedies, or public policy as to the enforcement of certain provisions, such as indemnification provisions.
2.3 The Interests have been duly and validly authorized and issued.
2.4 The Issuer knows of no pending or threatened legal or governmental proceedings to which the Issuer is a party which would materially adversely affect the business, financial condition or operations of the Issuer.
Determinations and Actions by the Board of Directors The Board of Directors of the Company shall have the exclusive power and authority to administer this Agreement and to exercise the rights and powers specifically granted to the Board of Directors of the Company or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including, without limitation, a determination to redeem or not redeem the Rights or to amend this Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clause (y) below, all omissions with respect to the foregoing) that are done or made by the Board of Directors of the Company in good faith, shall (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights, as such, and all other parties, and (y) not subject the Board of Directors to any liability to the holders of the Rights.
Deliveries by the Purchaser Purchaser hereby agrees to deliver, or cause to be delivered, to Sellers the following items on Closing:
Deliveries by the Buyer At the Closing, the Buyer shall deliver or cause to be delivered to the Seller or Escrow Agent, as applicable, the following items (unless the delivery of any of the following items is waived by the Seller):
(a) the Initial Purchase Price less the General Escrow Amount and the Warranty Escrow Amount;
(b) the General Escrow Amount and the Warranty Escrow Amount (each of which the Buyer shall deliver or cause to be delivered to the Escrow Agent to be held in the General Escrow and the Warranty Escrow, as the case may be, pursuant to the terms of the Escrow Agreement);
(c) the Xxxx of Sale and Assignment and Assumption Agreement, duly executed by the Buyer;
(d) the Intellectual Property Assignments, duly executed by the Buyer;
(e) the Assignment and Assumption of Lease, duly executed by the Buyer;
(f) the Non-Competition and Non-Solicitation Agreement, duly executed by the Buyer;
(g) a copy of the certificate of incorporation of the Buyer and all amendments thereto, certified as of the most recent practicable date by the Delaware Secretary of State;
(h) a certificate of the Delaware Secretary of State as to the good standing of the Buyer in the State of Delaware as of the most recent practicable date;
(i) a certificate of an officer of the Buyer, certifying the by-laws or equivalent document, including all amendments thereto, of the Buyer;
(j) a certificate of an officer of the Buyer certifying the resolutions of the Board of Directors of the Buyer authorizing the execution, delivery and performance of this Agreement by the Buyer and the transactions contemplated hereby and that such resolutions have not been modified, rescinded or otherwise changed since the date of the original resolutions;
(k) a certificate of an officer of the Buyer to the effect that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied;
(l) the Escrow Agreement, duly executed by the Buyer and the Escrow Agent; and
(m) any additional certificates, receipts, documents and instruments as the Seller may reasonably request.
