CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS.
23.
CONFLICTS.
TO THE EXTENT THERE IS ANY
CONFLICT BETWEEN THIS AGREEMENT AND THE LIMITED PARTNERSHIP AGREEMENT OF FUND I
(INCLUDING, WITHOUT LIMITATION, ANY SIDE LETTER RELATING THERETO), THE DLC GP
AGREEMENT OR THE ADVISORY AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL
APPLY WITH RESPECT TO THE PARTIES HERETO.
24.
RELATED PARTY TRANSACTIONS.(1)
IF INVESTOR
OR ANY AFFILIATE THEREOF OR ANY OF SUCH PERSON'S PARTNERS, MEMBERS,
SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, AGENTS OR OPERATING ADVISORS
(COLLECTIVELY, THE "PEGASUS ENTITIES"), ACQUIRES KNOWLEDGE OF A POTENTIAL
TRANSACTION OR MATTER WHICH MAY BE AN INVESTMENT OR BUSINESS OPPORTUNITY OR
PROSPECTIVE ECONOMIC OR COMPETITIVE ADVANTAGE IN WHICH DFR, DCM, DLC GP, FUND I
OR ANY AFFILIATE THEREOF OR ANY OF SUCH ENTITY'S PARTNERS, MEMBERS,
SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, AGENTS OR ADVISORS (COLLECTIVELY,
THE "DFR ENTITIES") COULD HAVE AN INTEREST OR EXPECTANCY (A "COMPETITIVE
OPPORTUNITY") OR OTHERWISE IS THEN EXPLOITING ANY COMPETITIVE OPPORTUNITY, NONE
OF THE DFR ENTITIES WILL HAVE ANY INTEREST IN, AND NO EXPECTATION THAT, SUCH
COMPETITIVE OPPORTUNITY BE OFFERED TO ANY DFR ENTITY.
TO THE FULLEST EXTENT
PROVIDED BY LAW, ANY SUCH INTEREST OR EXPECTATION IS HEREBY RENOUNCED SO
THAT NONE OF THE PEGASUS ENTITIES SHALL HAVE ANY DUTY TO COMMUNICATE OR PRESENT
SUCH COMPETITIVE OPPORTUNITY TO ANY DFR ENTITY AND EACH PEGASUS ENTITY
SHALL HAVE THE RIGHT TO EITHER HOLD ANY SUCH COMPETITIVE OPPORTUNITY FOR SUCH
PEGASUS ENTITY'S (AND ITS AGENTS', PARTNERS' OR AFFILIATES') OWN ACCOUNT AND
BENEFIT OR TO RECOMMEND, ASSIGN OR OTHERWISE TRANSFER SUCH COMPETITIVE
OPPORTUNITY TO PERSONS OTHER THAN TO A DFR ENTITY.
25.
DETERMINATIONS OF THE INVESTOR.
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THE TRANSACTION DOCUMENTS, NOTWITHSTANDING ANY
APPLICABLE PROVISION OF LAW OR EQUITY, TO THE FULLEST EXTENT PERMITTED BY LAW,
WHENEVER INVESTOR OR ANY OF ITS AFFILIATES IS PERMITTED TO MAKE A DECISION OR
CONSENT TO ANY ACTION PURSUANT TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT, ANY OF THE INVESTOR AND ITS AFFILIATES SHALL BE PERMITTED TO MAKE SUCH
DECISION OR PROVIDE OR WITHHOLD SUCH CONSENT IN ITS "SOLE DISCRETION" AND SHALL
BE ENTITLED TO CONSIDER ONLY SUCH INTERESTS AND FACTORS AS IT DESIRES, INCLUDING
ITS OWN
(1)
TO THE EXTENT THERE IS 3RD PARTY CAPITAL;
TO INCLUDE SIMILAR LANGUAGE IN THE PPM; INCLUDING A DISCLAIMER RELATING TO
INVESTOR'S LIABILITY UNDER THE FUND AGREEMENT (I.E., NOTWITHSTANDING INVESTOR'S
VARIOUS CONSENT AND OTHER RIGHTS, INVESTOR IS NOT ACTING IN THE CAPACITY OF A
GENERAL PARTNER AND NO PERSON HAS ANY RIGHTS AGAINST INVESTOR IN CONNECTION
THEREWITH).
15
INTERESTS, AND SHALL HAVE NO DUTY OR OBLIGATION TO GIVE ANY CONSIDERATION TO ANY
INTEREST OF OR FACTORS AFFECTING ANY OTHER PERSON.
26.
Representations and Warranties.
Each of the
parties makes representations and warranties as set forth in Exhibit A attached
hereto, as applicable, as of the date hereof.
27.
AMENDMENTS AND WAIVERS.
THIS AGREEMENT MAY
BE AMENDED AND THE OBSERVANCE OF ANY PROVISION OF THIS AGREEMENT MAY BE WAIVED
(EITHER GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR
PROSPECTIVELY)