Common use of In order to induce Clause in Contracts

In order to induce. the Buyer to proceed with the investigation and negotiation of the proposed Acquisition, the Seller agrees that between the date of execution of this letter of intent and 12:01 a.m., EDT, August 1, 2007 (the "Exclusivity Period") the Seller will not, and it will not permit any of the Seller's affiliates to, directly or indirectly, through any director, officer, employee, attorney, financial advisor or any other agent, take any action to solicit, initiate, seek or encourage any inquiry, proposal or offer from, furnish any information to, or participate in any discussions or negotiations with, any person (other than the Buyer or an affiliate thereof that the Buyer designates) regarding any acquisition of the Seller, any merger or consolidation with or involving the Seller, or any acquisition of all or any portion of the stock of the Seller (including without limitation, by tender offer) or the assets of the Seller (any such transaction being hereinafter referred to as a "Third Party Acquisition"). The Seller agrees that it will, and will cause all affiliates of the Seller, immediately to terminate any such discussions or negotiations (other than negotiations with the Buyer or an affiliate thereof that the Buyer designates) in progress as of the date of this letter and that in no event will the Seller or any affiliate of the Seller accept or enter into an agreement concerning any Third Party Acquisition during the Exclusivity Period. In addition, during the Exclusivity Period, the Seller will not, directly or indirectly, through any director, officer, employee, attorney, financial advisor or any other agent, initiate or continue to participate in any negotiations or discussions with any person relating to an acquisition of, joint venture with, or investment in, any business. The Seller will notify the Buyer immediately after receipt by the Seller or any affiliate of the Seller (or any of their respective directors, officers, employees, attorneys, financial advisors or other agents) of any proposal for, or inquiry respecting, any potential Third Party Acquisition or any request for nonpublic information in connection with such a proposal or inquiry, or for access to the properties, books or records of the Seller by any person. Such notice to the Buyer will indicate in reasonable detail the identity of the person making, and the terms of, the proposal or inquiry. The Seller will be responsible for any breach of the provisions of this Section 16 by any affiliate of the Seller or any of the respective directors, officers, employees, attorneys, financial advisors or other agents of the Seller or any such affiliate. The foregoing provisions of this Section 16 shall not be deemed to prevent the Seller's board of directors from taking such actions as are required to comply with their fiduciary duties to the Seller or its shareholders under applicable law; provided however, that the Seller's board of directors shall only be permitted to take such actions are as required to comply with such fiduciary duties, as determined in good faith by a majority of the Seller's board of directors in accordance with written advice from outside legal counsel. The Seller shall provide a copy of such written advice of outside legal counsel to the Buyer prior to taking any such actions.

In order to induce. the Buyer Lenders to proceed with extend credit hereunder, the investigation Borrower hereby absolutely, irrevocably and negotiation unconditionally guarantees, as a primary obligor and not merely as a surety, the timely payment of any and all of the proposed Acquisition, the Seller Obligations. The Borrower further agrees that between the date due and punctual payment of execution of this letter of intent and 12:01 a.m.the Obligations may be extended or renewed, EDTin whole or in part, August 1, 2007 (the "Exclusivity Period") the Seller will notwithout notice to or further assent from it, and that it will not permit remain bound upon its Guarantee hereunder notwithstanding any such extension or renewal of any Obligation. The Borrower waives presentment to, demand of payment from and protest to the Subsidiary Borrower of any of the Seller's affiliates toObligations, directly and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by (a) the failure of any Lender or indirectlythe Administrative Agent to assert any claim or demand or to enforce or exercise any right or remedy against any Loan Party under the provisions of this Agreement, through of any directorother Loan Document or otherwise or (b) any rescission, officerwaiver, employeeamendment or modification of any of the terms or provisions of this Agreement, attorney, financial advisor any other Loan Document or any other agentagreement or the release or other impairment of any Collateral or the release of the Subsidiary Borrower. The Borrower shall be obligated to keep informed of the financial condition of the Subsidiary Borrower; provided that the failure of the Borrower to keep so informed shall not affect its obligations hereunder. The Borrower further agrees that its agreement under this Article IX constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, take and waives any action right to solicitrequire that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of any Loan Party or any other Person or to any other remedy against any Loan Party. The Administrative Agent and any Lender may at any time and from time to time without the consent of, initiate, seek or encourage any inquiry, proposal or offer from, furnish any information notice to, the Borrower, without incurring responsibility to the Borrower, without impairing or participate releasing the obligations of the Borrower hereunder or under any security provided by the Borrower for performance of its obligations hereunder, upon or without any terms or conditions and in whole or in part: (a) subject to Section 10.02(b), change the manner, place or terms of payment (including the currency thereof) of and/or change or extend the time of payment of, renew or alter any discussions or negotiations withof the Obligations, any person (other than the Buyer or an affiliate thereof that the Buyer designates) regarding any acquisition of the Seller, any merger or consolidation with or involving the Sellersecurity therefor, or any acquisition liability incurred directly or indirectly in respect thereof, and the guarantee herein made shall apply to the Obligations as so changed, extended, renewed or altered; (b) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset thereagainst; (c) fail to assert any claims or demand or exercise or refrain from exercising any rights or remedies against or release the Subsidiary Borrower or others or otherwise act or refrain from acting; (d) subject to Section 10.02(b), settle or compromise any of the Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and subordinate the payment of all or any portion part thereof to the payment of any liability (whether due or not) of the stock Subsidiary Borrower; (e) apply any sum by whomsoever paid or howsoever realized to any liability or liabilities of the Seller Subsidiary Borrower or any other guarantor of any Obligations to the Lenders regardless of what liability or liabilities of the Subsidiary Borrower remain unpaid; and/or (including without f) consent to or waive any breach of, or any act, omission or default under, this Agreement or any other Loan Documents or otherwise amend, modify or supplement this Agreement, any other Loan Documents or any of such other instruments or agreements. The obligations of the Borrower under this Article IX shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by tender offer) or the assets reason of the Seller (invalidity, illegality or unenforceability of any such transaction being hereinafter referred of the Obligations, any impossibility in the performance of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Borrower under this Article IX shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission which may or might in any manner or to any extent vary the risk of the Borrower or otherwise operate as a "Third discharge of the Borrower or any other Loan Party Acquisition")as a matter of law or equity. The Seller Borrower further agrees that it its obligations under this Article IX shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Loan Party or otherwise. In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against the Borrower by virtue of this Article IX, upon the failure of the Subsidiary Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Borrower hereby promises to and will, and will upon receipt of written demand by the Administrative Agent, forthwith pay, or cause all affiliates to be paid, in cash the amount of the Seller, immediately to terminate such unpaid Obligation. The Borrower further agrees that if payment in respect of any such discussions or negotiations (Obligation shall be due in a currency other than negotiations dollars and/or at a place of payment other than New York and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of any applicable Lender, not consistent with the Buyer protection of its rights or an affiliate thereof that interests, then, at the Buyer designates) election of any applicable Lender, the Borrower shall make payment of such Obligation in progress as of dollars (based upon the applicable Exchange Rate in effect on the date of this letter payment) and/or in New York, and shall indemnify such Lender against any losses or expenses that in no event will it shall sustain as a result of such alternative payment. Upon payment by the Seller or Borrower of any affiliate sums as provided above, all rights of the Seller accept Borrower against the Subsidiary Borrower arising as a result thereof by way of right of subrogation, contribution, indemnity or enter into an agreement concerning otherwise shall in all respects by subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations owed by the Subsidiary Borrower to the Lenders and the Borrower shall not exercise any Third Party Acquisition during such rights until such payment in full and the Exclusivity Period. In addition, during the Exclusivity Period, the Seller will not, directly or indirectly, through any director, officer, employee, attorney, financial advisor or any other agent, initiate or continue to participate in any negotiations or discussions with any person relating to an acquisition of, joint venture with, or investment in, any businessCommitments are terminated. The Seller will notify the Buyer immediately after receipt by the Seller or any affiliate Guarantee of the Seller (Borrower under this Article IX is a continuing guarantee and all liabilities to which it applies or any of their respective directors, officers, employees, attorneys, financial advisors or other agents) of any proposal for, or inquiry respecting, any potential Third Party Acquisition or any request for nonpublic information in connection with such a proposal or inquiry, or for access to the properties, books or records of the Seller by any person. Such notice to the Buyer will indicate in reasonable detail the identity of the person making, and may apply under the terms of, the proposal or inquiry. The Seller will hereof shall be responsible for any breach of the provisions of this Section 16 by any affiliate of the Seller or any of the respective directors, officers, employees, attorneys, financial advisors or other agents of the Seller or any such affiliate. The foregoing provisions of this Section 16 shall not be deemed conclusively presumed to prevent the Seller's board of directors from taking such actions as are required to comply with their fiduciary duties to the Seller or its shareholders under applicable law; provided however, that the Seller's board of directors shall only be permitted to take such actions are as required to comply with such fiduciary duties, as determined have been created in good faith by a majority of the Seller's board of directors in accordance with written advice from outside legal counsel. The Seller shall provide a copy of such written advice of outside legal counsel to the Buyer prior to taking any such actionsreliance hereon.