The Settlement Fund 28. Releasors’ sole recourse for settlement and satisfaction against the Releasees of all Released Claims is against the Settlement Fund, and Releasors shall have no other recovery against Fujikura or any other Releasee.
29. After this Agreement becomes final within the meaning of Paragraph 20, the Settlement Fund shall be distributed in accordance with a plan to be submitted to the Court at the appropriate time by Settlement Class Counsel, subject to approval by the Court. In no event shall any Releasee have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such distribution and administration except as expressly otherwise provided in Paragraph 27 of this Agreement.
30. End-Payor Plaintiffs and Settlement Class Counsel shall be reimbursed and indemnified solely out of the Settlement Fund for all expenses and costs, as provided by Court Order. Fujikura and the other Releasees shall not be liable for any costs, fees, or expenses of any of End-Payor Plaintiffs or the Settlement Class’s respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court shall be paid out of the Settlement Fund.
31. Settlement Class Counsel’s Attorneys’ Fees, Reimbursement of Expenses, and Incentive Awards for Class Representatives
(a) Settlement Class Counsel may submit an application or applications to the Court (the “Fee and Expense Application”) for: (i) an award of attorneys’ fees not in excess of one-third of the settlement fund; plus (ii) reimbursement of expenses and costs incurred in connection with prosecuting the Action and incentive awards, plus interest on such attorneys’ fees, costs and expenses at the same rate and for the same period as earned by the Settlement Fund (until paid) as may be awarded by the Court (the “Fee and Expense Award”). Settlement Class Counsel reserve the right to make additional applications for Court approval of fees and expenses incurred and reasonable incentive awards, but in no event shall Fujikura or any other Releasees be responsible to pay any such additional fees and expenses except to the extent they are paid out of the Settlement Fund.
(b) Subject to Court approval, End-Payor Plaintiffs and Settlement Class Counsel shall be reimbursed and paid solely out of the Settlement Fund for all expenses including, but not limited to, attorneys’ fees and past, current, or future litigation expenses. Attorneys’ fees and expenses awarded by the Court shall be payable from the Settlement Fund upon award, notwithstanding the existence of any timely filed objections thereto, or potential appeal therefrom, or collateral attack on the settlement or any part thereof, subject to Settlement Class Counsel’s obligation to make appropriate refunds or repayments to the Settlement Fund with interest, if and when, as a result of any appeal and/or further proceedings on remand, or successful collateral attack, the fee or award of expenses is reduced or reversed, or in the event the Agreement is rescinded or terminated pursuant to Paragraph 25(h) or Paragraph 41.
(c) The procedure for and the allowance or disallowance by the Court of the application by Settlement Class Counsel for attorneys’ fees, costs and expenses, and incentive awards for class representatives to be paid out of the Settlement Fund are not part of this Agreement, and are to be considered by the Court separately from the Court’s consideration of the fairness, reasonableness and adequacy of the Settlement, and any order or proceeding relating to the Fee and Expense Application, or any appeal from any such order shall not operate to terminate or cancel this Agreement, or affect or delay the finality of the judgment approving the settlement.
(d) Neither Fujikura nor any other Releasee under this Agreement shall have any responsibility for, or interest in, or liability whatsoever with respect to any payment to Settlement Class Counsel of any Fee and Expense Award in the Action.
(e) Neither Fujikura nor any other Releasee under this Agreement shall have any responsibility for, or interest in, or liability whatsoever with respect to the allocation among Settlement Class Counsel, and/or any other person who may assert some claim thereto, of any Fee and Expense Award that the Court may make in the Action.
Settlement Fund All payments under this Section IV shall be made into the Settlement Fund, except that, where specified, they shall be made into the Settlement Fund Escrow. The Settlement Fund shall be allocated and used only as specified in Section V.
Settlement Funds The Servicer shall be named as a payee on all insurance loss drafts and upon receipt thereof, the funds shall be credited to the Borrower's Insurance Proceeds balance and deposited into (a) where such funds will be applied to the repair and restoration of the related Mortgaged Property and where required by applicable state law, one or more separate escrow accounts, so that the balance on deposit in such accounts is fully insured at all times by the FDIC through either the BIF or SAIF or (b) where such funds will not be applied to the repair and restoration of the related Mortgaged Property, the respective Custodial P&I Account.
Qualified Settlement Fund The Administrator shall establish a settlement fund that meets the requirements of a Qualified Settlement Fund (“QSF”) under US Treasury Regulation section 468B-1.
Settlement Method Election Physical Settlement, Cash Settlement, or Net Share Settlement, at the election of Counterparty as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements; provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement Shares in respect of which Dealer is unable, in good faith and in its commercially reasonable discretion, to unwind its commercially reasonable hedge by the end of the Unwind Period (taking into account any Additional Transactions with overlapping “Unwind Periods” (as defined in the applicable Additional Confirmations)) (A) in a manner that, in the reasonable discretion of Dealer, based on advice of counsel, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 under the Exchange Act (“Rule 10b-18”) or (B) in its commercially reasonable judgment, due to the occurrence of five or more Disrupted Days or to the lack of sufficient liquidity in the Shares on any Exchange Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined under “Termination Settlement” in Paragraph 7(g) below) and (iv) if the Final Date is a Settlement Date other than as the result of a valid Settlement Notice, in respect of such Settlement Date; provided, further, that, if Physical Settlement applies under clause (ii) immediately above, Dealer shall provide written notice to Counterparty at least two Scheduled Trading Days prior to the applicable Settlement Date.
Settlement Method Election Date The third Scheduled Trading Day immediately preceding the First Expiration Date.
Cashless Settlement Option ☐ to convert 100% of the outstanding principal amount of the Original Term Loans held by such Original Term Loan Lender (or such lesser amount allocated to such Lender by the First Refinancing Amendment Arranger) into Term B Loans in a like principal amount. ☒ to have 100% of the outstanding principal amount of the Original Term Loans held by such Original Term Loan Lender prepaid on the First Refinancing Amendment Effective Date and purchase by assignment the principal amount of Term B Loans committed to separately by the undersigned (or such lesser amount allocated to such Lender by the First Refinancing Amendment Arranger).
CASH SETTLEMENT OPTION The undersigned Existing Tranche B Term Lender hereby irrevocably and unconditionally approves of, and consents to, the Amendment and having 100% of the outstanding principal amount of the Tranche B Term Loans held by such Existing Tranche B Term Lender repaid on the Fifth Amendment Effective Date and to purchase by assignment Tranche C Term Loans in a like principal amount. By choosing this option, each undersigned Existing Tranche B Term Lender hereby acknowledges and agrees that the Administrative Agent may, in its sole discretion, elect not to allocate Tranche C Term Loans to such Existing Tranche B Term Lender or to allocate less than 100% of the principal amount of such Existing Tranche B Term Lender’s Tranche B Term Loans in Tranche C Term Loans. SENIOR SECURED FLOATING RATE LOAN FUND By: By: Credit Suisse Asset Management, LLC, the Portfolio Manager for Propel Capital Corporation, the manager for Senior Secured Floating Rate Loan Fund By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director If a second signature is necessary: By: Name: Title: Name of Fund Manager (if any): Credit Suisse Asset Management, LLC The undersigned, a Lender holding Tranche B Term Loans (“you”), hereby consents to the Fifth Amendment to that certain First Lien Credit Agreement, dated as of August 20, 2015 (as amended, amended and restated, supplemented or otherwise modified prior to the date hereof, including by an Increase Supplement dated as of November 30, 2015, by the First Amendment to First Lien Credit Agreement dated as of November 30, 2015, by an Increase Supplement dated as of October 5, 2016, by the Second Amendment to First Lien Credit Agreement dated as of October 5, 2016, by an Increase Supplement dated as of January 31, 2017, by the Third Amendment to First Lien Credit Agreement dated as of January 31, 2017 and by the Fourth Amendment to the First Lien Credit Agreement dated as of August 14, 2017, the “Existing First Lien Credit Agreement”), among LBM BORROWER, LLC, a Delaware limited liability company (the “Borrower”), LBM MIDCO, LLC, a Delaware limited liability company (“Holding”), the Lenders party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the “Administrative Agent”) and as Collateral Agent (in such capacity, the “Collateral Agent”) and the Lenders party thereto, which is proposed to be dated on or around February 15, 2018 and to be entered into among the Borrower, Holding, the several banks and financial institutions parties thereto as Lenders and the Administrative Agent (the “Amendment”) and to the attachment of this Existing Tranche B Term Lender Signature Page to the Amendment. Capitalized terms used and not otherwise defined herein shall have the respective meanings given to such terms in the Amendment or the Existing First Lien Credit Agreement, as applicable. [Check ONLY ONE of the two boxes below] x CASHLESS ROLLOVER OPTION Each undersigned Existing Tranche B Term Lender hereby irrevocably and unconditionally approves of, and consents to, the Amendment and the exchange (on a cashless basis) of 100% of the outstanding principal amount of the Tranche B Term Loans held by such Existing Tranche B Term Lender for a Tranche C Term Loan in a like principal amount. By choosing this option, each undersigned Existing Tranche B Term Lender hereby (i) acknowledges and agrees that the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Existing Tranche B Term Lender’s Tranche B Term Loans for Tranche C Term Loans or to exchange (on a cashless basis) less than 100% of the principal amount of such Existing Tranche B Term Lender’s Tranche B Term Loans for Tranche C Term Loans, in which case the difference between the current principal amount of such Existing Tranche B Term Lender’s Tranche B Term Loans and the allocated principal amount of Tranche C Term Loans will be prepaid on, and subject to the occurrence of, the Fifth Amendment Effective Date and (ii) agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each Existing Tranche B Term Lender and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof.
Settlement Method For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option.
Full Settlement; Mitigation The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others, provided that nothing herein shall preclude the Company from separately pursuing recovery from the Executive based on any such claim. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts (including amounts for damages for breach) payable to the Executive under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not the Executive obtains other employment.
