Irrevocable Proxy Each Stockholder hereby irrevocably grants to, and appoints, Weyerhaeuser, and any individual designated in writing by Weyerhaeuser, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares of such Stockholder, or grant a consent or approval in respect of such Subject Shares, in a manner consistent with Section 3.01. Each Stockholder understands and acknowledges that Weyerhaeuser is entering into the Transaction Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement. Each Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3.02 is given in connection with the execution of the Transaction Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Each Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Each Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL. Each Stockholder shall, upon written request by Weyerhaeuser, as promptly as practicable execute and deliver to Weyerhaeuser a separate written instrument or proxy that embodies the terms of this irrevocable proxy set forth in this Section 3.02. Notwithstanding the foregoing, the proxy and appointment granted hereby shall be automatically revoked, without any action by any Stockholder, upon any termination of this Agreement pursuant to Section 4.10.
Non-Waivers A failure or delay of either Party to enforce any of the provisions hereof, to exercise any option which is herein provided, or to require performance of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or options, and each Party, notwithstanding such failure, shall have the right thereafter to insist upon the performance of any and all of the provisions of this Agreement.
RELEASES AND WAIVERS Each of the releases and waivers enumerated in this Article 5 shall become effective only upon the Closing of the contribution and exchange of the Participating Entity Interests pursuant to Articles 1 and 2 herein.
Limited Waivers The Loan Party Obligors have requested that the Lender provide the following limited waivers (the “Limited Waivers”) and amend the Agreement to reflect the same, and the Lender has agreed to provide such Limited Waivers and amend the Agreement to reflect the same, but only on the terms and conditions set forth herein:
a. The Loan Party Obligors warrant and represent to the Lender that the Borrower has breached Section 5.15(d) of the Agreement (Quarterly Financial Statements) for the fiscal quarter ending December 31, 2017 (the “Stated Event of Default”). Upon the effectiveness of this First Amendment, the Lender hereby waives the Stated Event of Default provided that such Quarterly Financial Statement for fiscal quarter ending December 31, 2017 is delivered to the Lender by no later than May 31, 2018. The waiver of the Stated Event of Default is a one-time waiver only, which relates solely with the Borrower’s failure to comply with Section 5.15(d) for the fiscal quarter ending December 31, 2017 and shall not be deemed to constitute an agreement by the Lender to waive any future Events of Default. Further, nothing contained herein shall be deemed to constitute a waiver of any other Events of Default which may exist as of the date hereof.
b. Pursuant to Section 5.23 of the Agreement, among other things, the Parent is prohibited from utilizing (directly or indirectly) proceeds of the Revolving Loans to finance acquisitions. Notwithstanding the foregoing, the Loan Party Obligors have requested that the Lender waive the provisions of Section 5.23 that prohibit the Parent from using proceeds of the Revolving Loan to finance a portion of the Aves Acquisition. Upon the effectiveness of this First Amendment, the Lender hereby waives the provisions of Section 5.23, retroactive to March 5, 2018, that prohibit the Parent from using proceeds of the Revolving Loan to finance a portion of the Aves Acquisition. The waiver of the foregoing provisions of Section 5.23 is a one-time waiver only, which relates solely to the Aves Acquisition and shall not be deemed to constitute an agreement by the Lender to waive the provisions of Section 5.23 (or any other provision of the Agreement) in the future.
c. Pursuant to Section 5.27(i) of the Agreement, the Loan Party Obligors are prohibited from paying or declaring any dividends or distributions on any Loan Party’s stock or other equity interest except for Permitted Dividends. The First Amendment Distribution is not a Permitted Dividend. Notwithstanding the foregoing, the Loan Party Obligors have requested that the Lender waive the provisions of Section 5.27(i) that prohibit the Borrower from making the First Amendment Distribution, and allow the Borrower to make the First Amendment Distribution to the Parent so that the Parent may utilize the proceeds of the First Amendment Distribution to finance a portion of the Aves Acquisition. Upon the effectiveness of this First Amendment, the Lender hereby waives the provisions of Section 5.27(i), retroactive to March 5, 2018, that prohibit the Borrower from making the First Amendment Distribution. The waiver of the foregoing provisions of Section 5.27(i) is a one-time waiver only, which relates solely to the First Amendment Distribution and the Aves Acquisition and shall not be deemed to constitute an agreement by the Lender to waive the provisions of Section 5.27(i) (or any other provision of the Agreement) in the future.
Amendments; Waivers No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and each Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.