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No Individual Borrower nor Operating Lessee will cause or permit any change to be made in its name, identity (including its trade name or names), or its corporate or partnership or other structure unless it shall have first notified Lender in writing of such change at least thirty (30) days prior to the effective date of such change, and shall have first taken all reasonable action required by Lender for the purpose of perfecting or protecting the lien and security interests of Lender pursuant to this Agreement, and the other Loan Documents and, in the case of a change in its structure, without first obtaining the prior written consent of Lender, which consent may be given or denied in Lender’s sole discretion. Upon Lender’s request, each Borrower and Operating Lessee (as applicable) shall, at its sole cost and expense, execute and deliver additional security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the applicable Individual Property as a result of such change. Each Borrower’s and Operating Lessee’s principal place of business and chief executive office, and the place where Borrower and Operating Lessee keeps its books and records, including recorded data of any kind or nature, regardless of the medium or recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower and Operating Lessee) and will continue to be the address of Borrower or Operating Lessee set forth at the introductory paragraph of this Agreement (unless Borrower or Operating Lessee (as applicable) notifies Lender in writing at least thirty (30) days prior to the date of such change). Each Borrower and Operating Lessee shall promptly notify Lender of any change in its organizational identification number. If each Borrower or Operating Lessee does not now have an organizational identification number and later obtains one, it shall promptly notify Lender of such organizational identification number. | 66Organizations
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This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. | 26Counterparts
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Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or any Borrower or any of such Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participations. | 67Participations
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The Parties agree to defend, indemnify and hold harmless the other Party and shall reimburse the other Party for, from and against each claim, loss, liability, cost and expense (including, without limitation, interest, penalties, costs of preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors), directly or indirectly relating to, resulting from or arising out of: (a) Any untrue representation, misrepresentation, breach of warranty or non-fulfilment of any covenant, undertaking, agreement or other obligation by or of the party contained herein; (b) Any acts and omissions of the Party; or (c) Any other losses incidental to any of the foregoing. Furthermore, Seller agrees that, to the extent any liability or claims becomes known after the Effective Date and such liability allegedly accrued prior to the Effective Date, Seller shall indemnify and hold Buyer harmless under this section and in the manner proscribed herein. | 49Indemnifications
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Neither the Company, the Guarantor nor any of their Subsidiaries is in violation of or default on any term of its certificate of incorporation or bylaws, or other charter documents, as each is in effect as of the date hereof (collectively, the “ Charter Documents ”), or any provision of any material mortgage, indenture, contract, agreement, instrument, judgment, decree, order, rule or regulation or other restriction to which the Company, the Guarantor or such Subsidiary is a party or by which it is bound or of any material provision of any Law applicable to the Company, the Guarantor or any such Subsidiary. Each of (A) the execution, delivery and performance by the Company and the Guarantor of the Loan Documents, (B) the compliance herewith and therewith, (C) the issuance by the Company of this Note, and (D) the consummation of the transactions contemplated hereby, in the case of each of the foregoing clauses (A) through (D), will not result in any violation of or result in a breach of any of the terms of, or constitute a default under, (i) any provision of any material Law applicable to the Company, the Guarantor or any of its Subsidiaries, (ii) the Charter Documents, or (iii) any provision of any material mortgage, indenture, contract, agreement, instrument, or other restriction to which the Company, the Guarantor or any of their Subsidiaries is a party or by which they are bound. | 61No Conflicts
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The Company has the requisite corporate power and authority to execute and deliver this Agreement and each of the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The board of directors of the Company has duly approved this Agreement and all other Transaction Documents to which the Company is a party and has duly authorized the execution and delivery of this Agreement and all other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby. This Agreement and all other Transaction Documents to which the Company is a party have been duly executed and delivered by the Company and constitute the valid and binding agreements of the Company, enforceable against the Company in accordance with their terms. | 10Authorizations
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Each Party shall take, or cause to be taken, any and all reasonable actions, including the execution, acknowledgment, filing and delivery of any and all documents and instruments that any other Party may reasonably request in order to effect the intent and purpose of this Transition Services Agreement and the transactions contemplated hereby. | 45Further Assurances
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The Company and Parent shall be entitled to withhold from any amounts payable under this Agreement any federal, state, local or foreign withholding or other taxes or charges which the Company or Parent is required to withhold. | 99Withholdings
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No failure or delay by either Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further such exercise. No waiver of any term or condition of this Agreement shall be deemed to be a waiver of any subsequent breach of, or noncompliance with, any term or condition. All waivers must be in writing and signed by the Party sought to be bound thereby. | 63No Waivers
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The PRSUs are intended to align your long-term interests with the long-term interests of the Company. If you engage in certain activities discussed below, either during employment with the Company or after such employment terminates for any reason, the Company may terminate any outstanding, unexpired or unpaid PRSUs (“Termination”), rescind any payment or delivery pursuant to the PRSUs (“Rescission”) or recapture any cash or any Common Stock or proceeds from your sale of Common Stock acquired pursuant to the PRSUs (“Recapture”), as more fully described below and to the extent permitted by applicable law. For purposes of this Section 27, Competitive Organization or Business is defined as those corporations, institutions, individuals, or other entities identified by the Company as competitive or working to become competitive in the Company’s most recently filed annual report on Form 10-K. | 88Terminations
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THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. | 47Governing Laws
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The Company shall use the net proceeds from the sale of the Securities hereunder as set forth on Schedule 4.9 and, other than as expressly set forth on such schedule, for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations. | 92Use Of Proceeds
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Company covenants and agrees that in the event that this Note is secured by Collateral, Company shall timely execute any and all documents necessary or advisable in order to release such security interest and Collateral to Investor, or Investor’s designee, upon the earlier of (i) the date this Note is paid in full and (ii) the date that is six (6) months and three (3) days following the date such Collateral is given as security for this Note, or such later date as determined in the sole discretion of Investor (the “ Release Date ”). For the avoidance of doubt, as of the date hereof, there is no collateral securing this Note, and after the Release Date, as applicable, there shall be no collateral securing this Note . | 74Releases
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This Agreement, and the other documents and agreements referred to herein or entered into concurrently herewith embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein; provided that such other agreements and documents shall not be deemed to be a part of, a modification of or an amendment to this Agreement. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. Notwithstanding any other provision in this Agreement, wherever a conflict exists between this Agreement and the Securityholders Agreement, the provisions of the Securityholders Agreement shall control, but solely to the extent of such conflict. For the avoidance of doubt, the Preferred Unitholders acknowledge and agree that, effective as of the effectiveness of this Agreement, the Unpaid Preferred Return (as defined in the Prior Agreement) is $0. | 38Entire Agreements
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KeyBank and Subservicer each further agrees, at its own cost, and without expense to the other party, to do, execute, acknowledge, and deliver all and every such further agreements, instruments, acts, deeds, conveyances, financing statements, assignments, notices of assignments, transfers, and assurances as are required from time to time for carrying out the intention of facilitating the performance of the terms of the Subservicing Agreement and this Amendment. | 45Further Assurances
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The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are customary in the businesses in which the Company is engaged, including, but not limited to, directors and officers insurance coverage. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost. | 51Insurances
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The Company shall withhold from the Severance Benefit Payment all federal, state, city or other taxes and any other withholding as may be required pursuant to any law or governmental regulation or ruling at the time payment is received. | 99Withholdings
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Executive is hereby employed as Executive Vice President, Chief Financial Officer and Treasurer of the Company. In his capacity as Executive Vice President, Chief Financial Officer and Treasurer, Executive shall have the duties, responsibilities and authority commensurate with such position as shall be assigned to him by the Chief Executive Officer of the Company. In his capacity as Executive Vice President, Chief Financial Officer and Treasurer of the Company, Executive will report directly to the Chief Executive Officer of the Company. | 35Employment
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The rights and obligations of the Stockholder pursuant to this Agreeme nt are not assignable . Any attempted assignment of such rights and obligations in violation of this Section 3 .4 will be null and void. The provisions of this Agreement will be binding upon and inure to the benefit of the parties and their respective successors. | 7Assignments
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(a) PPG hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Borrower or any other Person or any collateral. | 97Waivers
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Each Loan Party (a) is a corporation or other form of legal entity, and each of its Subsidiaries is a corporation, partnership or other form of legal entity, validly organized and existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be, (b) has all requisite corporate or other power and authority to carry on its business as now conducted, (c) is duly qualified to do business and is in good standing as a foreign corporation or foreign partnership (or comparable foreign qualification, if applicable, in the case of any other form of legal entity), as the case may be, in each jurisdiction where the nature of its business requires such qualification, except where the failure to so qualify will not have a Material Adverse Effect, and (d) has full power and authority and holds all requisite material governmental licenses, permits and other approvals necessary to enter into and perform its obligations under this Agreement and each other Loan Document to which it is a party and to own or hold under lease its Property and to conduct its business substantially as currently conducted by it. No Loan Party nor any Subsidiary thereof is an EEA Financial Institution. | 66Organizations
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Employee understands that this Agreement shall be null and void if not executed by him and delivered to the Company within twenty one (21) days of the Separation Date. This Agreement will become effective on the eighth (8th) day after Employee signed this Agreement, so long as it has been signed by the Parties and has not been revoked under the terms of section 6 above before that date (the “Effective Date”). | 33Effective Dates
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Each Group Member owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted. Except for such claims as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does the Borrower know of any valid basis for any such claim. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the use of Intellectual Property by each Group Member does not infringe on the rights of any Person. | 53Intellectual Property
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The Companies that are Loan Parties unconditionally and jointly and severally agree upon demand to pay to the Administrative Agent and the Lenders the amount of any and all reasonable out-of-pocket costs, expenses and disbursements, including reasonable fees and expenses of counsel (including the allocated costs of staff counsel) for which reimbursement is customarily obtained, which the Administrative Agent or any of the Lenders may incur in connection with (a) the administration of this Agreement, (b) the exercise or enforcement of any of the rights of the Administrative Agent or the Lenders hereunder or (c) the failure by the Companies to perform or observe any of the provisions hereof. | 41Expenses
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A Director shall be entitled to receive cash payments with respect to Fees deferred under the Interest Rate Deferral option together with interest accrued to the date of payment in each year of the applicable period as elected under Subparagraph 4(c); provided, however, that in the event payments commence based on a Director's Separation from Service, no payment shall be made earlier than six months after the date of such Separation from Service if the Director is then a Specified Employee, in which case any suspended payment shall occur on the earliest date permitted by this Subparagraph and Section 409A. The amount of cash to be paid each year with respect to the amount of Interest Rate Deferrals from any Plan Year shall be computed by multiplying a fraction, the numerator of which is one and the denominator of which is the number of years remaining in the applicable payment period for such Interest Rate Deferrals, by the remaining portion of such Interest Rate Deferrals plus accrued interest on such Deferred Fees (e.g., 1/10th is paid in the first year of a ten-year payment period; 1/9th of the remaining balance in the second year, 1/8th of the remaining balance in the third year, etc., over the ten years). | 68Payments
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If any term or provision of any of the Loan Documents or the application of it shall to any extent be held by a court to be invalid and unenforceable, the remainder of the Loan Documents , or the application of such term or provision other than to the extent to which it is invalid or unenforceable, shall not be affected. | 79Severability
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The Recipient is required to provide sufficient funds to pay all withholding taxes. Pursuant to the Plan, the Company shall have the right to require the Recipient to remit to the Company an amount sufficient to satisfy federal, state, local or other withholding tax requirements if, when, and to the extent required by law (whether so required to secure for the Company an otherwise available tax deduction or otherwise) attributable to the Award awarded under this Agreement, including without limitation, the award or lapsing of stock restrictions on the Award. The obligations of the Company under this Agreement shall be conditional on satisfaction of all such withholding obligations and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Recipient. However, in such cases Recipient may elect, subject to any reasonable administrative procedures for timely compliance established by the Committee, to satisfy an applicable withholding requirement, in whole or in part, by having the Company withhold a portion of the shares of Stock to be issued under the Award to satisfy the Recipient’s tax obligations. The Recipient may only elect to have shares of Stock withheld having a Market Value on the date the tax is to be determined equal to the minimum statutory total withholding taxes arising upon the vesting of the Award. If the Recipient has not submitted an election on or before the thirtieth (30) day prior to a Vesting Date, Recipient shall be deemed to have elected to have shares withheld from the shares of Stock to be issued under the Award to satisfy the Recipient’s tax obligation. All elections shall be irrevocable, made in writing, signed by the Recipient, and shall be subject to any restrictions or limitations that the Committee deems appropriate. | 87Taxes
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The payments referenced herein, including the severance benefits set forth in Section 2, shall be subject to reduction for all amounts required or authorized to be withheld by law, including all applicable U.S. federal, state, and local withholding taxes. | 87Taxes
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Each Holder, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Guarantors agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive in any action for specific performance the defense that a remedy at law would be adequate. | 75Remedies
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This Agreement may be executed in one or more counterparts, including electronic, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. | 26Counterparts
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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. | 84Successors
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Each Loan Party and each Subsidiary has filed all federal and other material Tax returns and reports to be filed, and has paid all federal and other material Taxes, assessments, fees and other governmental charges, levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax assessment against any Loan Party or Subsidiary that would, if made, have a Material Adverse Effect on the Loan Parties, taken as a whole. | 87Taxes
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This Guaranty contains the entire agreement between Landlord and Guarantor with respect to the subject matter hereof and supersedes all prior writings and oral agreements. This Guaranty may not be modified orally, but only by a writing signed by both Guarantor and Landlord. Modifications include any waiver, change, discharge, modification or termination. | 60Modifications
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During the Interim Period and the Transition Period, the Executive will (i) receive his base salary as in effect on the Effective Date and (ii) participate in the Company’s retirement and welfare benefit plans, perquisite programs, expense reimbursement and vacation policies, as such plans, programs and policies may be in effect from time to time (collectively, the “ Plans ”). | 11Base Salary
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This Agreement shall be binding upon all successors and assigns of each of the Parties to the Agreement. | 13Binding Effects
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Pledgor shall, and shall cause each of its Subsidiaries, to make available to Agent and each Lender, without expense to Agent or any Lender, each such Person’s officers, employees and agents and books, to the extent that Agent or any Lender may deem them reasonably necessary to prosecute or defend any third-party suit or proceedings instituted by or against Agent or any Lender with respect to any Collateral or relating to the Pledgor or its Subsidiaries. | 58Litigations
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All notices, requests, demands and other communications (collectively, “ Notices ”) given pursuant to this Agreement shall be electronic or in writing, and shall be delivered by email or by personal service, courier, facsimile transmission or by United States first class, registered or certified mail, postage prepaid, addressed to the party at the address set forth on the signature page to this Agreement. Any Notice, other than a Notice sent by registered or certified mail, shall be effective when received; a Notice sent by registered or certified mail, postage prepaid return receipt requested, shall be effective on the earlier of when received or the fifth day following deposit in the United States mails. Any party may from time to time change its address for further Notices hereunder by giving notice to the other party in the manner prescribed in this Section. Notwithstanding the foregoing, the Company may send the information set forth in Paragraphs 2.1 and 2.2 via email. | 65Notices
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The Executive agrees that, following termination of the Executive's employment for any reason, the Executive shall upon reasonable advance notice, and to the extent it does not interfere with previously scheduled travel plans and does not unreasonably interfere with other business activities or employment obligations, assist and cooperate with the Company with regard to any matter or project in which the Executive was involved during the Executive's employment, including any litigation. The Company shall compensate the Executive for any lost wages (or, if the Executive is not then employed, provide reasonable compensation as determined by the Compensation Committee) and expenses associated with such cooperation and assistance. | 24Cooperation
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This Agreement shall be governed by and construed in accordance with the laws of New York, without reference to its conflict of laws principles. Subject to Section 12.3, the Parties consent to the exclusive jurisdiction of the state and federal courts of New York in the event that there is a dispute related to this Agreement. | 47Governing Laws
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All notices, requests and other communications hereunder shall be in writing and shall be deemed to have been duly given at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three days after deposit in the United States mail, registered or certified, return receipt requested, with postage prepaid and addressed to the party to receive same, if to the Company, addressed to Mr. Rich Kaiser, CGO, at 590 York Road, Unit 3, Niagara On The Lake, Ontario, CANADA L0S 1J0, telephone (716) 803-0621, and e-mail XXXXX and if to the Employee, addressed to Mr. Paul Parliament at P.O. Box XXX Post Office, St. David’s Ontario, XXXXX. telephone (905)-324-XXXX and e-mail XXXXX ; provided, however, that if either party shall have designated a different address by notice to the other given as provided above, then any subsequent notice shall be addressed to such party at the last address so designated. | 65Notices
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Terms not defined in this Agreement shall have the meanings assigned thereto in Appendix A to the Sale and Servicing Agreement dated as of the date hereof (as from time to time amended, supplemented or otherwise modified and in effect, the “ Sale and Servicing Agreement ”) among the Purchaser, as seller, Honda Auto Receivables 2016-3 Owner Trust, as Issuer, and the RPA Seller, as Servicer and Sponsor. | 29Definitions
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The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the Transactions will not (i) result in a violation of the Certificate of Incorporation, or other organizational document of the Company or any of its subsidiaries, any capital stock of the Company or any of its subsidiaries or bylaws of the Company or any of its subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws) and applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that could not reasonably be expected to have a material adverse effect on the Company or its subsidiaries, and taking into account the Waivers required in Section 2.3(a). | 61No Conflicts
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This Release may be amended only upon a written agreement executed by the Bank and me. | 2Amendments
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This Guarantee and the other Credit Documents represent the agreement of each Guarantor with respect to the subject matter hereof and there are no promises or representations by any Guarantor, the Administrative Agent or any Lender relative to the subject matter hereof not reflected herein or in the other Credit Documents. | 52Integration
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Each of the respective rights and obligations of the Parties hereunder will be deemed independent and may be enforced independently irrespective of any of the other rights and obligations set forth herein. If any provision of this Release should be held illegal or invalid, such illegality or invalidity will not affect in any way other provisions hereof, all of which will continue, nevertheless, in full force and effect. | 79Severability
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As provided in the Credit Agreement, but without limiting any terms or provisions thereof, each Obligor agrees to pay on demand, upon presentation of a statement of account, all reasonable costs and expenses incurred by the Agent in connection with the preparation, negotiation, and execution of this Agreement, including without limitation the reasonable costs and fees of the Agent’s legal counsel, regardless of whether the Waiver Date occurs in accordance with the terms hereof. | 41Expenses
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Except as set forth on Schedule 3.6, there is no litigation, suit, proceeding, action, claim, demand or investigation, at law or in equity, pending or threatened against or affecting the Company before any court, agency, Government Authority or arbitration tribunal, in each case related to the Purchased Assets or the Business. The Company has not received any opinion or legal advice in writing to the effect that it is exposed from a legal standpoint to any Liability related to the Purchased Assets or the Business. To the knowledge of the Company, there are no facts that would reasonably be expected to result in any such litigation, suit, proceeding, action, claim or investigation. The Company is not subject to or in default with respect to any notice, order, writ, injunction or decree of any court, agency, Government Authority or arbitration tribunal, in each case related to the Purchased Assets or the Business. | 58Litigations
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The paragraph headings that appear in this Amendment are for purposes of convenience of reference only and are not in any sense to be construed as modifying the substance of the paragraphs in which they appear. | 48Headings
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The Administrative Agent and each Lender shall have received prior written notice from an Authorized Officer of Apache of an Additional Borrower becoming party to this Agreement at least five (5) Business Days prior to the date selected for such Additional Borrower to become party to this Agreement. | 65Notices
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The Company shall reimburse the Executive for all expenses reasonably and actually incurred in accordance with policies which may be adopted from time to time by the Company. | 41Expenses
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The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and, where applicable, good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel. | 10Authorizations
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Each of the Company and Investor shall bear its own expenses in connection with the preparation and negotiation of this Agreement. | 41Expenses
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This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by the other Parties hereto. Counterparts delivered by electronic transmission shall be deemed to be originally signed counterparts. | 26Counterparts
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The Committee may make equitable and proportionate adjustments in the terms and conditions of, and the criteria included in, this Award in recognition of unusual or nonrecurring events (and shall make adjustments for the events described in Section 4.2 of the Plan) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations, or accounting principles in accordance with the Plan whenever the Committee determines that such events affect the Shares. Any such adjustments shall be effected in a manner that precludes the material enlargement of rights and benefits under this Award. | 0Adjustments
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Within three (3) days after the Effective Date, Seller shall make available for review by Purchaser or its representatives at all times prior to the Closing (including during the Due Diligence Period) on a datasite (the “ DataSite ”), materials related to the Properties, which are in the actual possession of Seller, as Purchaser may reasonably request (collectively, the “ Diligence Materials ”); provided, that the foregoing obligation is not a Surviving Seller Representation and failure by Seller to provide any Diligence Materials shall not entitle Purchaser to seek specific performance or extend the Contingency Approval Date or the Scheduled Closing Date as a result thereof. Notwithstanding any provision of this Agreement to the contrary, the following books and records (the “ Excluded Records ”) shall not be subject to review by Purchaser (including under this Section 5.2 ): all proprietary, privileged or confidential documents of Seller (or any affiliate thereof) relating to (i) any financing of the Properties, (iii) any Seller or affiliate income or franchise tax returns, (iv) any appraisal or valuation of the Properties, (v) any internal financial analysis or projections, (vi) any marketing studies or reports, (vii) any credit analysis, (viii) any prior offers to purchase any Property, (ix) any other materials related to Seller’s investment structure for purchasing and holding the Properties which do not relate to matters reasonably relevant to ownership of the Properties or (x) any matters subject to attorney-client privilege. | 73Records
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If one or more provisions of this Option Agreement are held to be unenforceable, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision will be excluded from this Option Agreement, (b) the balance of this Option Agreement will be interpreted as if such provision were so excluded and (c) the balance of this Option Agreement will be enforceable in accordance with its terms. | 79Severability
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The undersigned chief financial officer, chief accounting officer or other accounting officer reasonably approved by Agent of Borrower (or of the REIT) certifies in his or her capacity as an officer of Borrower or REIT, as applicable, and not individually, that Borrower is and will be in compliance with all covenants under the Loan Documents after giving effect to the making of the Loan requested hereby and no Default or Event of Default has occurred and is continuing. | 62No Defaults
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On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, such Purchaser’s Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser (an aggregate of $500,000 in Subscription Amount of Notes). At the Closing, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Note, as determined pursuant to Section 2.3(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.3 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.4 for the Closing, the Closing shall occur at the offices of the Purchaser’s counsel or such other location as the parties shall mutually agree. | 18Closings
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A Participant shall deliver to the Administrative Committee all directions, orders, designations, notices or other communications on appropriate forms to be furnished by the Administrative Committee. The Administrative Committee shall also receive notices or other communications directed to Participants from the Trustee and transmit them to the Participants. All elections which may be made by a Participant under this Plan shall be made in a time, manner and form determined by the Administrative Committee unless a specific time, manner or form is set forth in the Plan. | 65Notices
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From time to time and without additional consideration, each party hereto shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as another party hereto may reasonably request for the purpose of carrying out and furthering the intent of this Agreement. | 45Further Assurances
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If any indemnification provided for in this Article IV is determined by any arbitrator with authority to make such determination under this Article IV or by a Delaware federal or state court to be invalid, void or unenforceable, to the maximum extent permitted by Law, the Liability shall be apportioned between the Indemnitee and the Indemnifying Party in accordance with this Article IV . | 79Severability
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The invalidity of any one or more of the words, phrases1 sentences, clauses or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law, and in the event that any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall be declared invalid, this Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is caused by length of time or size of area, or both, the otherwise invalid provision will be considered to be reduced to a period or area which would cure such invalidity. | 79Severability
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ProSight and each Seller expressly and irrevocably releases each Buyer Party, its affiliates and their respective current and former officers, directors, employees, agents and controlling persons from any and all claims, demands and liabilities arising from or in respect of its ownership of the Shares or the Transaction (including any claim, demand or liability based on Tiptree’s possession, use or non-disclosure of the Information) (collectively, the “ Released Claims ”), and ProSight and each Seller agree to make no claim against each Buyer Party, its affiliates and their respective officers, directors, employees, agents and controlling persons in connection with the foregoing. Notwithstanding the foregoing in this Section 4 , the Released Claims shall not include, and nothing contained in this Agreement shall affect any claims with respect to (a) the right to receive payment of the purchase price contemplated herein and (b) any breach of this Agreement. Each party hereto acknowledges that (i) it is relying on the representations, warranties, acknowledgments and agreements in this Agreement of the other parties hereto as a condition to proceeding with the Transaction and (ii) without such representations, warranties, acknowledgments and agreements, such party would not enter into this Agreement or engage in the Transaction. | 74Releases
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No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by any Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom such waiver, amendment, supplement or modification is sought to be enforced; provided , however , that the Partnership and the Operating Company may not, without the prior approval of the Conflicts Committee, agree to any amendment or modification of this Agreement that the General Partner determines will adversely affect the holders of Common Units. | 2Amendments
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The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be reasonable and customary in the businesses in which the Company and its Subsidiaries are engaged. To the Company’s knowledge, since June 30, 2013 neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for and neither the Company nor any such Subsidiary, to the Company’s knowledge, will be unable to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect . | 51Insurances
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The Executive’s annual base salary is $485,100 , which is subject to review and redetermination by the Board or the Compensation Committee of the Board (the “Compensation Committee”) from time to time. The annual base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary will be payable in a manner that is consistent with the Company’s usual payroll practices for senior executives. | 11Base Salary
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All notices, requests and other communications to any party hereunder shall be given in the manner prescribed in Section 11.02 of the Credit Agreement with respect to the Administrative Agent at its notice address therein and, with respect to any Guarantor, in the care of Weatherford International, LLC, as provided and at the notice address set forth in the Credit Agreement, or such other address or telecopy number as such party may hereafter specify for such purpose in accordance with the provisions of Section 11.02 of the Credit Agreement. | 65Notices
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The Company will use the proceeds from the sale of the Common Stock hereunder for working capital and other general corporate purposes or, if different, in a manner consistent with the application thereof described in the Registration Statement. The Company will not, to its knowledge, directly or indirectly, use the proceeds of the transaction, or lend, contribute, facilitate or otherwise make available such proceeds to any person (i) to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or Sanctions Programs, or (ii) in any other manner that will result in a violation of Sanctions. | 92Use Of Proceeds
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Borrower shall have delivered to Bank evidence of insurance coverage, in form, substance, amounts, covering risks and issued by companies satisfactory to Bank, and where reasonably required by Bank, with lender loss payable endorsements in favor of Bank. Bank acknowledges that such evidence delivered by Borrower prior to the date of this Agreement is satisfactory to Bank. | 51Insurances
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This Agreement is intended by the parties as a final expression of their agreement, and are intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein, with respect to the registration rights granted by the Corporation with respect to Registrable Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. | 38Entire Agreements
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The term of the Loan shall begin on the Effective Date and shall consist of a thirty‑six (36) month interest only payment period ending on July 31, 2019 (the “ Interest Only Period ”), followed by a one hundred twenty (120) month principal and interest payment period ending on the Maturity Date (the “ Amortization Period ”). | 89Terms
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You and the COMPANY shall mutually agree to a date, time and place at which you shall return to the COMPANY the COMPANY property in your possession or control, including but not limited to, all paper records and documents, access cards and keys to any COMPANY facilities. Notwithstanding the foregoing, all parties acknowledge that there may be additional follow up work requested of you after the Termination Date which may require access to certain COMPANY Equipment and records, and that you shall be entitled to retain same for ready access and assistance to the COMPANY for a reasonable time period, whereafter the COMPANY may request return of same. For avoidance of doubt, it is acknowledged that you own your cell phone and the phone number associated with it, your laptop and associated monitors and docking station and such property is not subject to the requirement in this provision to return COMPANY property. | 73Records
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The Employee’s RSUs shall vest only if both (i) the Employee satisfies the service-based vesting requirements in subsections (b), (c), (d) or (e) below, as applicable, and (ii) the Committee certifies that the performance-based vesting requirement in subsection (f) below has been achieved. | 46General
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This Agreement shall be binding upon and inure to the benefit of (i) the Company and its successors and assigns, and (ii) Director, and Director’s heirs, devisees, executors, administrators and personal representatives. | 13Binding Effects
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This Agreement embodies the entire and final agreement of the parties on the subject matter stated in this Agreement. No amendment or modification of this Agreement shall be valid or binding upon the Employer or the Executive unless made in writing and signed by all parties. All prior understandings and agreements relating to the subject matter of this Agreement are hereby expressly terminated. | 38Entire Agreements
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Each Party agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Each Party agrees that, in the event of any breach or threatened breach by any other Party of any covenant or obligation contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. | 81Specific Performance
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Company shall use the net proceeds from the sale of Subordinated Notes for general corporate purposes. | 92Use Of Proceeds
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Air Products or another member of the Air Products Group shall amend the Air Products Defined Benefit Retirement Plans to provide that Versum Employees shall be vested in their accrued benefits under the Air Products Defined Benefit Retirement Plans as of the Employee Transfer Date. | 95Vesting
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IHS and the Borrowers, each other Loan Party (by its execution of the Loan Documents to which it is a party), the Administrative Agent and each Lender acknowledges that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review the Loan Documents with its legal counsel and that the Loan Documents shall be construed as if jointly drafted by the parties thereto. | 23Construction
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All payments to be made to Holder shall be made in the lawful money of the United States of America in immediately available funds without setoff, counterclaim or deduction. Any payment received by Holder and its registered assigns after 4:00 p.m. (Buffalo, New York time) on any day, will be deemed to have been received on the next following Business Day. Notwithstanding the foregoing, Holder acknowledges that one or more payments may be made on this note as a setoff payment pursuant to the Section 10.02 (e) of that certain Asset Purchase Agreement dated the date hereof by and among the Company, the Holder and the other parties thereto. | 68Payments
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Sections 4, 5 and 6 of this Release Agreement shall be subject to enforcement pursuant to the same procedures that apply to a breach of Paragraphs 4 or 5 of the Employment Agreement (as further detailed in Paragraph 15 of the Employment Agreement). Any other disputes concerning this Release Agreement shall be subject to resolution pursuant to Paragraph 15 of the Employment Agreement. | 37Enforcements
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All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of the Agreement and the Seller hereby waives the benefit of the applicable statutes of limitations with respect to any of the covenants, agreements, representations and warranties set forth herein. It shall not be a defense in any action by the Purchaser against the Seller arising out of a breach of the Seller's covenants, agreements, representations and warranties made herein that the Purchaser knew or should have known of the existence of the related breach of such covenants, agreements, representations and warranties. | 85Survival
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(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate. | 54Interests
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Either party may terminate this Agreement for any reason by giving not less than ninety (90) days prior written notice. | 88Terminations
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Except as amended by the provisions of this letter agreement, the terms and provisions contained in the Asset Purchase Agreement shall continue to govern the rights and obligations of the parties, and all provisions and covenants in the Asset Purchase Agreement shall remain in full force and effect as stated therein. This letter agreement and the Asset Purchase Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter thereof and hereof. | 59Miscellaneous
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The Borrower and its Tax Affiliates have timely filed or caused to be filed all federal and all material state, local and non-U.S. Tax returns and reports required to have been filed and have paid or caused to be paid all Taxes shown therein to be due (including interest and penalties) and has paid all other material Taxes, except (yyyy) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which such Person has set aside on its books adequate reserves in accordance with GAAP or (zzzz) Taxes which are not yet delinquent. There is no tax assessment proposed in writing, or to the knowledge of the Borrower, except for matters set forth on Schedule 3.9, threatened, against the Borrower or Tax Affiliates that could, if made, be reasonably expected to have a Material Adverse Effect. The Borrower is not a party to any tax sharing agreement. | 87Taxes
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(a) The amendments provided for herein shall become effective on the date (the “ First Amendment Effective Date ”) on which the Administrative Agent shall have executed a counterpart of this Amendment and shall have received from the Company, each other Loan Party and Lenders constituting the Supermajority Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) evidence reasonably satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart of this Amendment. | 34Effectiveness
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This Agreement may be executed in one or more duplicate counterparts and when signed by all of the parties shall constitute a single binding agreement. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission (e.g., “.pdf”) shall be as effective as delivery of a manually signed original. | 26Counterparts
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The Optionee agrees to make appropriate arrangements with the Company (or the Parent or Subsidiary employing or retaining the Optionee ) for the satisfaction of all Federal, state, local and foreign income and employment tax withholding requirements applicable to the Option exercise. The Optionee acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver the Shares if such withholding amounts are not delivered at the time of exercise. | 99Withholdings
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The Plan shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of Delaware (without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware). | 4Applicable Laws
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Upon the re quest of Administrative Agent, execute and/or deliver any additional agreements, documents and instruments, and take such further actions as may be reasonably requested by Administrative Agent from time to time, to carry out the provisions and purposes of this Guaranty and the other Loan Documents. | 45Further Assurances
|
(a) Immediately following the consummation of the transactions to occur on the ARCA Effective Date, including the making of the New Credit Agreement Loans and the application of the proceeds thereof, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent. | 80Solvency
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The Grantors shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, but limited to no more than one counsel and, if applicable, one local and one regulatory counsel in each applicable jurisdiction) in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Secured Party (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Secured Party) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and any other Loan Document, including its rights under this Section 9.12 , or (B) in connection with the Loans made or Letters of Credit issued under the Credit Agreement, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. | 41Expenses
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Immediately after the Closing (i) the Seller expects to be able to pay all creditors in a timely manner; and (ii) no solvency proceeding of any character, including bankruptcy, receivership, reorganization, composition or arrangement with creditors (including any assignment for the benefit of creditors), voluntary or involuntary, affecting the Assets or the Seller is pending or is currently being contemplated by Seller or, to the knowledge of Seller, is being threatened against Seller. The Seller has not made any assignment for the benefit of creditors or taken any action in contemplation of, or which would constitute the basis for, the institution of any such insolvency proceedings. | 80Solvency
|
Communication between the Servicer and Designated Persons shall be conducted in a manner (dependent in part on the parties at issue in the litigation as well as the law applicable to that litigation) so as to not waive the attorney-client privilege or the work product doctrine evidentiary privilege. | 24Cooperation
|
The Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). The Company has delivered to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated documents. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to February 29, 2016, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the 1934 Act. For the avoidance of doubt, filing of the documents required in this Section 3(g) via the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) shall satisfy all delivery requirements of this Section 3(g). | 43Financial Statements
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If any part of this Amendment is contrary to, prohibited by, or deemed invalid under applicable Laws as defined in the Original Agreement, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given effect so far as possible. | 79Severability
|
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before August 9, 2016; provided , however , that such termination will not affect the right of any party to sue for any breach by any other party (or parties). | 88Terminations
|
Schedule 4.13(b) is a complete and correct list of each Lien securing Indebtedness of any Person outstanding on the Sixth Restatement Effective Date the aggregate principal or face amount of which equals or exceeds (or may equal or exceed) $1,000,000 and covering any property of the Borrower or any of its Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by each such Lien and the property covered by each such Lien is correctly described in Schedule 4.13(b) . | 57Liens
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Except as set forth in Schedule 3.1(w) or the SEC Reports, none of the officers or directors of the Company or its subsidiaries and none of the employees of the Company or its subsidiaries is presently a party to any transaction with the Company or any subsidiary or Affiliate thereof (other than for services as employees, officers and directors required to be disclosed under Item 404 of Regulation S-K under the Exchange Act). | 91Transactions With Affiliates
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