Common use of Effectiveness; Miscellaneous Clause in Contracts

Effectiveness; Miscellaneous. (a) Each capitalized term used in this Amendment, Assignment and Joinder shall have the meaning provided to such term in the Investment Agreement, unless such term is otherwise defined in this Amendment, Assignment and Joinder. (b) Notwithstanding anything in the Investment Agreement to the contrary, no additional deposit shall be due from the Commitment Parties as a result of the Amendment; provided that nothing in this Section 5(b) shall be deemed to modify the deposit required of the New Commitment Parties identified on Schedule 3 pursuant to Section 2(e) in connection with the Assignment. (c) The amendments to the Investment Agreement set forth in Section 1 shall be herein referred to as the “Amendment.” The consummation of the Transfer made pursuant to Section 2 shall be herein referred to as the “Assignment.” The joinder set forth in Section 3 shall be herein referred to as the “Joinder.” The terms set forth in this Section 5 shall, as applicable, apply to each of the Amendment, Assignment and Joinder. (d) Upon giving effect to the Amendment but prior to giving effect to the Transfer of the Investment Interests pursuant to the Assignment, the parties hereto agree that Schedule 2 attached hereto sets forth the Debt Commitment Percentage, Equity Commitment Percentage and, with respect to the Debt Commitment Parties, the “Debt Rights Offering Reduction Percentage” of each such Commitment Party under the Investment Agreement. After giving effect to the Transfer of the Investment Interests pursuant to the Assignment, the parties hereto agree that Schedule 1 attached hereto sets forth the Debt Commitment Percentage, Equity Commitment Percentage and, with respect to the Debt Commitment Parties, the “Debt Rights Offering Reduction Percentage” of each such Commitment Party under the Investment Agreement. (e) Any reference in the Investment Agreement to “this Agreement” shall hereafter be deemed to refer to the Investment Agreement as amended by the amendment dated October 12, 2017 and this Amendment, Assignment and Joinder. For the avoidance of doubt, any reference in the Investment Agreement to “Equity Commitment Party” or “Debt Commitment Party” shall hereafter be deemed to include each of the New Commitment Parties. (f) The Amendment, Assignment and Joinder shall be effective as of 12:01 am (New York City time) on the date first set forth above following the execution of this Amendment, Assignment and Joinder by all of the parties hereto; provided that notwithstanding the foregoing, but solely for sequencing purposes, the Amendment shall be deemed to have occurred immediately prior to the Assignment and Joinder. (g) This Amendment, Assignment and Joinder shall be deemed effective upon the effectiveness of each of the Amendment, Assignment and Joinder. (h) The parties consent to this Amendment, Assignment and Joinder and acknowledge that except as expressly amended, modified or supplemented as set forth herein, the Investment Agreement shall continue in full force and effect, remain unchanged and is hereby ratified and confirmed in all respects. (i) This Amendment, Assignment and Joinder may be executed in any number of counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the parties and delivered to each other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart. (j) THIS AMENDMENT, ASSIGNMENT AND JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. BY THE EXECUTION AND DELIVERY OF THIS AMENDMENT, ASSIGNMENT AND JOINDER, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES FOR ITSELF THAT ANY LEGAL ACTION, SUIT, OR PROCEEDING AGAINST IT WITH RESPECT TO ANY MATTER ARISING UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, ASSIGNMENT AND JOINDER, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT, OR PROCEEDING, MAY BE BROUGHT IN THE BANKRUPTCY COURT, AND BY EXECUTING AND DELIVERING THIS AMENDMENT, ASSIGNMENT AND JOINDER, EACH OF THE PARTIES IRREVOCABLY ACCEPTS AND SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF SUCH COURT, GENERALLY AND UNCONDITIONALLY, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING IN THE BANKRUPTCY COURT AND IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN THE BANKRUPTCY COURT THAT ANY SUCH SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN THE BANKRUPTCY COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. (k) EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AMENDMENT, ASSIGNMENT AND JOINDER, WHETHER IN CONTRACT, TORT OR OTHERWISE.

Effectiveness; Miscellaneous. (a) Each capitalized term used This Agreement shall become effective on the date hereof, subject to receipt by the Administrative Agent of the following, and upon its effectiveness, the amendment set forth in Section 3 hereof shall be deemed effective as of August 2, 2023 (the “Effective Time”): (i) a counterpart of this AmendmentAgreement duly executed by each party hereto; and (ii) an amendment fee payable to PNC Capital Markets LLC, Assignment and Joinder shall have in its capacity as Structuring Agent, in an amount equal to .025% of the meaning provided Commitment of PNC, in its capacity as a Committed Lender, that is applicable to such term in Committed Lender at all times other than during the Investment Agreement, unless such term is otherwise defined in this Amendment, Assignment and JoinderSeasonal Period. (b) Notwithstanding anything in the Investment This Agreement shall be binding upon and inure to the contrary, no additional deposit shall be due from the Commitment Parties as a result benefit of the Amendment; provided that nothing parties hereto and their respective successors and permitted assigns (including any trustee in this Section 5(b) shall be deemed to modify the deposit required of the New Commitment Parties identified on Schedule 3 pursuant to Section 2(e) in connection with the Assignmentbankruptcy). (c) The amendments to the Investment Agreement set forth in Section 1 shall be herein referred to as the “Amendment.” The consummation of the Transfer made pursuant to Section 2 shall be herein referred to as the “Assignment.” The joinder set forth in Section 3 shall be herein referred to as the “Joinder.” The terms set forth in this Section 5 shallTHIS AGREEMENT SHALL BE GOVERNED BY, as applicableAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, apply to each of the Amendment, Assignment and JoinderTHE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES). (d) Upon On and after the Effective Time, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and all references to such agreement in any and all agreements, instruments, documents, notes, certificates and other writings of every kind and nature shall be deemed to mean and be a reference to such agreement, after giving effect to this Agreement. The Loan Agreement, the Amendment but prior to other Facility Documents and the other documents, instruments and agreements executed or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed, after giving effect to the Transfer of the Investment Interests pursuant to the Assignment, the parties hereto agree that Schedule 2 attached hereto sets forth the Debt Commitment Percentage, Equity Commitment Percentage and, with respect to the Debt Commitment Parties, the “Debt Rights Offering Reduction Percentage” of each such Commitment Party under the Investment Agreement. After giving effect to the Transfer of the Investment Interests pursuant to the Assignment, the parties hereto agree that Schedule 1 attached hereto sets forth the Debt Commitment Percentage, Equity Commitment Percentage and, with respect to the Debt Commitment Parties, the “Debt Rights Offering Reduction Percentage” of each such Commitment Party under the Investment this Agreement. (e) Any reference in the Investment The execution, delivery and effectiveness of this Agreement to “this Agreement” shall hereafter be deemed to refer not operate as a waiver of any right, power or remedy of any party to the Investment Loan Agreement as amended by the amendment dated October 12, 2017 and this Amendment, Assignment and Joinder. For the avoidance of doubt, or any reference in the Investment Agreement to “Equity Commitment Party” or “Debt Commitment Party” shall hereafter be deemed to include each of the New Commitment Partiesother Facility Documents, nor constitute a waiver of any provision contained therein, except as specifically set forth herein. (f) The Amendment, Assignment and Joinder shall be effective as of 12:01 am (New York City time) on the date first set forth above following the execution of this Amendment, Assignment and Joinder by all of the parties hereto; provided that notwithstanding the foregoing, but solely for sequencing purposes, the Amendment shall be deemed to have occurred immediately prior to the Assignment and Joinder. (g) This Amendment, Assignment and Joinder shall be deemed effective upon the effectiveness of each of the Amendment, Assignment and Joinder. (h) The parties consent to this Amendment, Assignment and Joinder and acknowledge that except as expressly amended, modified or supplemented as set forth herein, the Investment Agreement shall continue in full force and effect, remain unchanged and is hereby ratified and confirmed in all respects. (i) This Amendment, Assignment and Joinder may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which will be considered taken together shall constitute but one and the same agreement and instrument. Delivery of an executed counterpart of this Agreement electronically shall be deemed as effective as delivery of an originally executed counterpart. Any party delivering an executed counterpart of this Agreement electronically will become effective when counterparts have been signed by each also deliver an original executed counterpart, but the failure of any party to so deliver an original executed counterpart of this Agreement will not affect the parties and delivered to each other party (including via facsimile validity or other electronic transmission), it being understood that each party need not sign the same counterparteffectiveness of this Agreement. (jg) THIS AMENDMENTAny provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, ASSIGNMENT AND JOINDER SHALL BE GOVERNED BYas to such jurisdiction, AND CONSTRUED IN ACCORDANCE WITHbe ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, THE INTERNAL LAWS OF THE STATE OF NEW YORK. BY THE EXECUTION AND DELIVERY OF THIS AMENDMENT, ASSIGNMENT AND JOINDER, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES FOR ITSELF THAT ANY LEGAL ACTION, SUIT, OR PROCEEDING AGAINST IT WITH RESPECT TO ANY MATTER ARISING UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT, ASSIGNMENT AND JOINDER, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT, OR PROCEEDING, MAY BE BROUGHT IN THE BANKRUPTCY COURT, AND BY EXECUTING AND DELIVERING THIS AMENDMENT, ASSIGNMENT AND JOINDER, EACH OF THE PARTIES IRREVOCABLY ACCEPTS AND SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF SUCH COURT, GENERALLY AND UNCONDITIONALLY, WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING IN THE BANKRUPTCY COURT AND IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN THE BANKRUPTCY COURT THAT ANY SUCH SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN THE BANKRUPTCY COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUMand any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. (kh) EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTIONSection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this agreement for any other purpose. (i) Unless otherwise expressly indicated, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AMENDMENT, ASSIGNMENT AND JOINDER, WHETHER IN CONTRACT, TORT OR OTHERWISEall references herein to “Section” shall mean sections of this Agreement.