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(a) Immediately upon issuance by an Issuer of any Facility Letter of Credit in accordance with the procedures set forth in Section 2.15.3, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from such Issuer, without recourse or warranty, an undivided interest and participation equal to its Pro Rata Share of such Facility Letter of Credit (including, without limitation, all obligations of the applicable Borrower with respect thereto) and any security therefor or guaranty pertaining thereto; provided , that a Facility Letter of Credit issued by an Issuer shall not be deemed to be a Facility Letter of Credit for purposes of this Section 2.15.5 if such Issuer shall have received written notice from any Lender on or before one Business Day prior to the date of its issuance of such Facility Letter of Credit that one or more of the conditions contained in Sections 4.1 or 4.2 are not then satisfied, and, in the event an Issuer receives such a notice, it shall have no further obligation to issue any Facility Letter of Credit until such notice is withdrawn by that Lender or such condition has been effectively waived in accordance with the provisions of this Agreement. | 67Participations
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No Performance Units or DERs awarded to the Service Provider under this Agreement may be transferred, assigned, pledged or encumbered by the Service Provider, except (i) by will or by the laws of descent and distribution or (ii) pursuant to a domestic relations order. Except as set forth above, any attempt to transfer, assign, pledge or encumber the Performance Units or DERs by the Service Provider shall be null, void and without effect. The rights and protections of the General Partner hereunder shall extend to any successors or assigns of General Partner. | 7Assignments
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This Certificate of Designations or any provision hereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the NRS, of the Required Holders, voting separate as a single class, and with such other stockholder approval, if any, as may then be required pursuant to the NRS and the Articles of Incorporation. | 2Amendments
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In consideration of the payments and benefits provided to the Executive under the Employment Agreement and after consultation with counsel, the Executive and each of the Executive’s respective heirs, executors, administrators, representatives, agents, insurers, successors and assigns (collectively, the “ Releasors ”) hereby irrevocably and unconditionally release and forever discharge the Company, its subsidiaries and affiliates and each of their respective officers, employees, directors, shareholders and agents (“ Releasees ”) from any and all claims, actions, causes of action, rights, judgments, obligations, damages, demands, accountings or liabilities of whatever kind or character (collectively, “ Claims ”), including, without limitation, any Claims under any federal, state, local or foreign law, that the Releasors may have, or in the future may possess, arising out of (i) the Executive’s employment relationship with and service as an employee, officer or director of the Company, Viacom (as defined in the Employment Agreement) or any subsidiaries or affiliated companies and the termination of such relationship or service, and (ii) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the date hereof and relates to your employment with Viacom; provided, however, that the Executive does not release, discharge or waive any rights to (i) payments and benefits provided under the Employment Agreement that are contingent upon the execution by the Executive of this Agreement or otherwise expressly survive termination thereof; (ii) rights provided under that certain letter dated October 31, 2016 among the Executive, the Company and Viacom; and (iii) any indemnification rights the Executive may have in accordance with the Company’s governance instruments or under any director and officer liability insurance maintained by the Company with respect to liabilities arising as a result of the Executive’s service as an officer and employee of the Company. | 74Releases
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Either Party may terminate this Agreement for the material breach or default of any of the terms or conditions of this Agreement by the other Party upon thirty (30) days’ written notice and the opportunity to cure during such notice period; and such termination shall be in addition to any other remedies that it may have at law or in equity. Additionally, LBIO may terminate this Agreement if MD Anderson is declared insolvent or enters into liquidation or has a receiver or an administrator appointed over all or any part of its assets or ceases or threatens to cease to carry on business, or a resolution is passed or a petition presented to any court for the winding up of the Party or for the granting of an administration order in respect of MD Anderson, or any proceedings are commenced relating to the insolvency or possible insolvency of MD Anderson. | 88Terminations
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The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to receipt of the Required Approvals and the Stockholder Approval, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited by or be invalid under such law, that provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating or nullifying the remainder of that provision or any other provision of this Agreement. The language of all the parts of this Agreement and Release shall be construed as a whole, according to its fair meaning, and not strictly for or against either party. | 79Severability
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Lenders authorize Administrative Agent to release any (i) Lien with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of an Asset Disposition which the Borrower certifies in writing to Administrative Agent is a Permitted Asset Disposition or a Lien which the Borrower certifies is a Permitted Lien entitled to priority over Administrative Agent’s Liens (and Administrative Agent may rely conclusively on any such certificate without further inquiry); (c) that does not constitute a material part of the Collateral; (d) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of Administrative Agent pursuant to the Security Documents; or (e) with the written consent of the Required Lenders or (ii) Guarantor from its obligations under any Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents. Lenders hereby authorize Administrative Agent to execute and deliver any instruments, documents and agreements necessary or desirable to evidence and confirm the release of any Collateral or any Guarantor from its obligations under any Guaranty pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender. Administrative Agent shall have no obligation whatsoever to any Lenders to assure that any Collateral exists or is owned by the Borrower or a Guarantor, or is cared for, protected, insured or encumbered, nor to assure that Administrative Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. | 57Liens
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Consultant shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Company's prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Company may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns. | 7Assignments
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Except as otherwise provided in this Agreement or as otherwise provided by court order, if any Bank (a “ benefitted Bank ”) shall at any time receive any payment of all or part of its Committed Rate Loans or L/C Obligations, or interest thereon or commitment fee or letter of credit fee hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in clause (e) of Section 8, or otherwise) in a greater proportion than any such payment to and collateral received by any other Bank, if any, in respect of such other Bank’s Committed Rate Loans or L/C Obligations, or interest thereon, or commitment fee or letter of credit fee hereunder, such benefitted Bank shall purchase for cash from the other Banks such portion of each such other Bank’s Committed Rate Loans or L/C Obligations, or shall provide such other Banks with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such benefitted Bank to share the excess payment or benefits of such collateral or proceeds ratably with each of such other Banks; provided , however, that if all or any portion of such excess payment or benefits is thereafter recovered from such benefitted Bank, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrowers agree that each Bank so purchasing a portion of another Bank’s Committed Rate Loans or L/C Obligations may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Bank were the direct holder of such portion. | 0Adjustments
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During and after the Executive’s employment, the Executive shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company. The Executive’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executive’s employment, the Executive also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company. Any cooperation pursuant to this Section 8(b) is subject to the Company’s obligation to (i) reimburse the Executive for any expenses incurred during activities reasonably performed at the Company’s request pursuant to this Section 8(b), subject to the same standards and procedures as apply to business expense reimbursements pursuant to the Company’s Travel and Expense reimbursement policy, and (ii) compensate the Executive at a daily rate equal to the Executive’s annual Base Salary as of the date of the Executive’s separation from employment, divided by 365, to the extent that the Executive reasonably expends any time in performing activities at the Company’s request pursuant to this Section 8(b) at any time after the Executive’s separation from employment; provided that the Executive acknowledges that he shall not at any time be entitled to compensation for time spent in activities that could have been compelled pursuant to a subpoena, including testimony and related attendance at depositions, hearings or trials. | 58Litigations
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All shares of CDI Stock issued hereunder to the Recipient or his Personal Representative shall be transferred in accordance with all applicable laws, regulations and listing requirements of any national securities exchange on which CDI Stock is then traded or listed, and the Company may take all actions necessary or appropriate to comply with such requirements including, without limitation, restricting (by legend or otherwise) such CDI Stock as shall be necessary or appropriate, in the opinion of counsel for the Company, to comply with applicable federal and state securities laws, including Rule 16b-3 (or any similar rule) of the Securities and Exchange Commission, and postponing the issuance or delivery of any shares of CDI Stock. Notwithstanding any provision in this Agreement to the contrary, the Company shall not be obligated to issue or deliver any shares of CDI Stock if such action violates any provision of any law or regulation of any governmental authority or any national securities exchange. The Company may also condition the issuance of shares of CDI Stock upon the prior receipt from the Recipient of any undertakings that the Company determines are required to ensure that the shares are being issued in compliance with federal and state securities laws. | 19Compliance With Laws
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After giving effect to the execution and delivery of the Transaction Documents and the consummation of the Transactions, the Borrower and its Subsidiaries, taken as a whole, will not be “insolvent” within the meaning of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable to pay their debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated. | 80Solvency
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This Amendment shall become effective as of the date first above written (the “ Effective Date ”) upon (a) receipt by the Administrative Agent of counterparts of this Amendment, duly executed by each of the parties hereto, and consented to by the Performance Guarantor in the space provided below, (b) receipt by the Administrative Agent of counterparts to the Fifteenth Amended and Restated Fee Letter of even date herewith (the “ Fee Letter ”), duly executed by the Agents and the Seller and (c) receipt by each of Chariot, the Liberty Street Agent and Wells Fargo of the Amendment Fee payable to it under (and as defined in) the Fee Letter. | 33Effective Dates
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Company or any of the Company’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 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 Borrower, the Administrative Agent, the Lenders 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 10.04(c) without regard to the existence of any participation. | 67Participations
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Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of such counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto. | 55Interpretations
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This Note will be governed by, and construed and enforced in accordance with, the laws of the State of New York, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction. | 47Governing Laws
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Payments of Salary shall be subject to the customary withholding of income and other employment taxes as is required with respect to compensation paid by an employer to an employee. | 99Withholdings
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This Agreement shall be governed by the internal laws of the state in which the Real Property is located. | 4Applicable Laws
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Unless the Administrator provides otherwise at the grant date or provides thereafter in a manner more favorable to the Participant and subject to Section 4.6, Deferred Share Units shall be fully vested and nonforfeitable when granted. | 95Vesting
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Subject to the terms of the EQT Plan and/or the EQM Plan, this Agreement may be modified or amended by the EQT Compensation Committee; provided that no such amendment shall materially and adversely affect the rights of Grantee hereunder without the consent of Grantee. Notwithstanding the foregoing, Grantee hereby expressly agrees to any amendment to the EQT Plan and/or the EQM Plan and this Agreement to the extent necessary to comply with applicable law or changes to applicable law (including, but not limited to, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and related regulations or other guidance and federal securities laws. | 2Amendments
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No proceeds of any Credit Extension will be used by the Transferor to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended. | 92Use Of Proceeds
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Each party agrees that during and after the term of this Engagement Letter it will keep confidential and will not use or disclose to any third party any confidential or proprietary information learned by such party or disclosed to such party in connection with this Engagement Letter or the services contemplated hereby, except for use or disclosure necessary to perform services under this Engagement Letter. Unless expressly stated in an Addendum, you acknowledge that our services will not involve our storage, transmission, or processing of any personally identifiable information or personal health information. This Paragraph 6 is complementary to and does not supersede any confidentiality or nondisclosure agreement already in force between the parties. You and we acknowledge U.S. federal law (18 U.S.C. § 1833(b)) states that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that-(A) is made-(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. You and we acknowledge that law further states that an individual who files a lawsuit for retaliation for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual-(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order. For the avoidance of doubt, nothing in this Engagement Letter is intended to, nor shall be construed to, conflict with 18 U.S.C. § 1833(b). | 20Confidentiality
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All issued and outstanding shares of capital stock and equity interests in the Company have been duly authorized and validly issued and are fully paid and non-assessable. The Capitalization of the Company is accurately set forth in the SEC Documents. Except as set forth in the SEC Documents, there are no options, warrants or rights to subscribe to securities, rights, understandings or obligations convertible into or exchangeable for or granting any right to subscribe for any shares of capital stock or other equity interest of the Company or any of the Subsidiaries. There are no outstanding agreements or preemptive or similar rights affecting the Company’s Common Stock or equity. | 16Capitalization
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Subject to the notice and cure provisions contained in the Mortgage, upon the occurrence or existence of any Event of Default, the holder hereof may, without further notice, declare the entire unpaid principal balance of this Note and all unpaid, accrued interest on this Note and all other obligations of the Maker to the holder of this Note, whether direct or indirect, absolute or contingent, now existing or hereafter arising, immediately due and payable, without further notice or demand, and the Maker shall pay all such sums and other obligations. Further, upon the occurrence or existence of any such Event of Default, the holder of this Note shall be entitled to exercise any or all remedies provided or referenced in this Note, the Loan Agreement, the Mortgage or any other instrument or agreement evidencing, securing or relating to the indebtedness evidenced by this Note and any other rights and remedies under state or federal law. Failure to exercise any such rights and remedies upon any Event of Default shall not constitute a waiver of any rights in the event of any subsequent Event of Default. If this Note is placed in the hands of an attorney for collection or if collected through the probate court, bankruptcy court, or by any other legal or judicial proceedings, the Maker agrees and is obligated to pay, in addition to the sums referred to above, the reasonable attorneys' fees of the holder of this Note, together with all court costs and other reasonable expenses paid by such holder. | 75Remedies
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This offer letter, the Employee Confidentiality, Non-Compete and Inventions Assignment Agreement and the agreement(s) representing stock options granted to you, if any, under the Plan, when signed by you, set forth the terms of your employment with the Company and supersede any and all prior representations and agreements, whether written or oral. | 38Entire Agreements
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The Borrower is a limited partnership duly organized and existing under the laws of the State of Delaware, with its principal place of business in the State of Illinois, and is duly qualified as a foreign limited partnership, properly licensed (if required), in good standing and has all requisite authority to conduct its business in each jurisdiction in which it owns Properties and, except where the failure to be so qualified or to obtain such authority would not have a Material Adverse Effect, in each other jurisdiction in which its business is conducted. Each of its Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which it owns Property, and except where the failure to be so qualified or to obtain such authority would not have a Material Adverse Effect, in each other jurisdiction in which it conducts business. | 40Existence
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In any action between or among any of the Parties arising out of this Agreement, any of the agreements contemplated hereby or otherwise, (a) each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in the State of Delaware, (b) if any such action is commenced in a state court, then, subject to applicable law, no Party shall object to the removal of such action to any federal court located in the State of Delaware, (c) each of the Parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 10.2, and (d) the substantially prevailing Party shall be entitled to recover their reasonable attorneys’ fees, costs, and disbursements from the other Parties (in addition to any other relief which the substantially prevailing Party may be entitled). | 56Jurisdictions
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The parties hereto agree, upon demand by any party, whether made before the institution of a judicial proceeding or not more than 60 days after service of a complaint, third party complaint, cross-claim, counterclaim or any answer thereto or any amendment to any of the above to submit to binding arbitration all claims, disputes and controversies between or among them (and their respective employees, officers, directors, shareholders, members, managers, attorneys, and other agents), whether in tort, contract or otherwise arising out of or relating to in any way (i) the loan and related Documents which are the subject of this Agreement and their negotiation, execution, collateralization, administration, repayment, modification, extension, substitution, formation, inducement, enforcement, default or termination; or (ii) requests for additional credit; provided however that the parties agree that, notwithstanding the foregoing, each party retains the right to pursue in small claims court any dispute within that court’s jurisdiction. In the event of a court ordered arbitration, the party requesting arbitration shall be responsible for timely filing the demand for arbitration and paying the appropriate filing fee within the 30 days of the abatement order or the time specified by the court. Failure to timely file the demand for arbitration as ordered by the court will result in that party’s right to demand arbitration being automatically terminated. | 6Arbitration
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All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties). | 65Notices
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The Shares issued under this Agreement shall immediately vest and may be sold, exchanged, transferred, pledged, assigned or otherwise disposed only as defined or provided in the Plan. | 95Vesting
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In the event of termination of Executive’s employment, (i) Executive shall remain covered under the directors and officers liability insurance maintained by the Company in commercially reasonable amounts (as determined by the Board) to the same extent as executives of the Company; and (ii) Executive shall remain eligible for indemnification by the Company to the extent provided for in the Company by-laws in effect from time to time, provided that such indemnification shall not be less favorable than the indemnification provided for in the Company’s by-laws in effect as of January 1, 2017. | 49Indemnifications
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Except as otherwise provided in this Agreement and subject to the Participant’s continuous service with the Company or a Subsidiary, the Restricted Shares will vest on the third anniversary of the Date of Grant (such three (3) year period, the “Restricted Period”). | 95Vesting
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Unless otherwise defined herein, the capitalized terms used in this Amendment shall have the same meaning assigned to such capitalized terms in the Agreement. | 28Defined Terms
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All notices, demands, solicitations of consent or approval, and other communications hereunder shall be in writing and shall be sufficiently given if personally delivered, transmitted by facsimile or sent postage prepaid by overnight courier or registered or certified mail, return receipt requested, addressed as follows: if intended for the Partnership or the General Partner, to the Partnership’s principal business office determined pursuant to Section 2.4 , and if intended for any other Partner to the address of such Partner set forth on Schedule A hereto, or to such other address as such Partner may designate from time to time by written notice to the Partnership. Notices shall be deemed to have been given when personally delivered or transmitted by facsimile with electronic confirmation of receipt or, if mailed or sent by overnight courier, on the date on which received. The provisions of this Section 14.12 shall not prohibit the giving of written notice in any other manner; provided that, in any such case any such written notice shall be deemed given only when actually received. | 65Notices
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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 neither the Borrower nor any other Credit Party may 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 Eligible Assignee in accordance with the provisions of clause (b) of this Section; (ii) by way of participation in accordance with the provisions of clause (d) of this Section; or (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (e) 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 clause (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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The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), at least two Business Days before the Closing Date. | 42Fees
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Except as set forth on Schedule 3.1(g), the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, 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 the light of the circumstances under which they were made, not misleading. The Company is not now or has not in the last year been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable or accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. | 43Financial Statements
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Through the closing of the Company’s acquisition of CBS Radio, Inc., you will be paid under that certain employment agreement between you and the Company dated May 5, 2015. | 12Benefits
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You acknowledge and agree that this Agreement, along with the specific agreements that are expressly incorporated herein by reference and stated as surviving the signing of this Agreement, supersede any and all prior or contemporaneous oral and written agreements between you and Pieris, and set forth the entire agreement between you and Pieris. | 38Entire Agreements
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Comply, and cause each Subsidiary to comply, in all material respects with all Federal, state, local or foreign applicable statutes, rules, regulations and orders, including those relating to terms and conditions of employment, labor relations and collective bargaining, wages and hours, leave laws, workers’ compensation, unemployment compensation, immigration, income tax, notice for plant closings and mass layoffs, occupational safety and health, and equal employment practices. | 19Compliance With Laws
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The Company hereby acknowledges and agrees that to the best of the Company’s knowledge: (a) neither the Company nor any of its affiliates has any claim or cause of action against Wells Fargo (or any of its respective affiliates, officers, directors, employees, attorneys, consultants or agents), and (b) Wells Fargo has heretofore properly performed and satisfied in a timely manner all of its obligations to the Company under the Credit Agreement. Notwithstanding the foregoing, Wells Fargo wishes (and the Company agrees) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of Wells Fargo’s rights, interests, security and/or remedies under the Credit Agreement. Accordingly, for and in consideration of the agreements contained in this letter agreement and other good and valuable consideration, the Company (for itself and its affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “ Releasors ”) does hereby fully, finally, unconditionally and irrevocably release and forever discharge Wells Fargo and each of its affiliates, officers, directors, employees, attorneys, consultants and agents (collectively, the “ Released Parties ”) from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute, or otherwise, which any Releasor has heretofore had, now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done on or prior to date hereof arising out of, connected with or related in any way to the Credit Agreement, or any act, event or transaction related or attendant thereto, or Wells Fargo’s agreements contained therein, or the possession, use, operation, or control of any of the Company’s assets, or the making of any Advance, or the management of such Advance or the collateral securing the Company’s Obligations to Wells Fargo on or prior to the date hereof. Notwithstanding anything to the contrary, the above release only applies to all matters known to Company at this time. | 74Releases
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This Amendment may be executed in one or more counterparts, and by separate parties on separate counterparts, all of which shall constitute one and the same agreement. Facsimile copies of signatures or copies of signatures sent by electronic mail (as a “pdf” or “tif” attachment) shall be treated as manually signed originals for the purposes of this Amendment and the documents to be delivered pursuant to Section 5. Any party delivering an executed counterpart of this Amendment by facsimile or electronic mail also shall deliver a manually executed counterpart of this Amendment, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment. | 26Counterparts
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This Agreement shall be effective as of the Effective Date and, unless terminated earlier pursuant to Sections 10.2 , 10.3 or 10.4 , shall continue in full force and effect, on a country-by-country basis in the Territory, until expiration of all payment obligations hereunder (the “ Term ”). Upon expiration in a given country, Endocyte’s rights in the Licensed Know-How pursuant to Section 1.1 in such country shall become fully paid-up and perpetual. | 89Terms
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Any Bank may at any time sell to one or more Persons (each a “ Participant ”) participating interests in any Loan owing to such Bank, any Note held by such Bank, any Commitment of such Bank and any other interest of such Bank under the Credit Documents (in respect of any such Bank, its “ Credit Exposure ”). Notwithstanding any such sale by a Bank of participating interests to a Participant, such Bank’s rights and obligations under the Credit Documents shall remain unchanged, such Bank shall remain solely responsible for the performance thereof, such Bank shall remain the holder of any such Note for all purposes under this Agreement (except as expressly provided below), and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under the Credit Documents. The Borrower also agrees that each Participant shall be entitled to the benefits of Section 6 ; provided that the transferor Bank and the Participant, together, shall not be entitled to receive any greater amount pursuant to such Section than the transferor Bank would have been entitled to receive in respect of the amount of the participating interest transferred by such transferor Bank to such Participant had no such transfer occurred. Each Bank agrees that any agreement between such Bank and any such Participant in respect of such participating interest shall not restrict such Bank’s right to agree to any amendment, supplement, waiver or modification to this Agreement or any Credit Document, except where the result of any of the foregoing would be to extend the maturity of any Loan or Commitment or reduce the rate or extend the time of payment of interest and fees thereon or reduce the principal amount thereof. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Credit Exposure or other obligations under the Credit Documents (the “ Participant Register ”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any the Credit Exposure or other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such Credit Exposure or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. | 67Participations
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This Agreement and the legal relations between the Parties shall be governed by and construed in accordance with the laws of the State of Texas, without regard to principles of conflicts of laws that would direct the application of the laws of another jurisdiction . | 47Governing Laws
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Each of the parties hereby consents to the exclusive jurisdiction of the state and federal courts sitting in Delaware in any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement. | 56Jurisdictions
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This Agreement shall be governed by the laws of the State of North Carolina, without regard to the choice of law principles of any jurisdiction. Each party agrees that any litigation under this Agreement shall occur exclusively in a state or federal court in Guilford County, North Carolina and in no other venue. As such, each party irrevocably consents to the jurisdiction of and venue in the courts in Guilford County, North Carolina for all disputes with respect to this Agreement. Executive agrees to service of process in any such dispute via FedEx to Executive’s last home address in the Company’s records, without limiting other service methods allowed by applicable law. The parties agree that the terms in this Section are material to this Agreement, and that they will not challenge the enforceability of this Section in any forum. | 47Governing Laws
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Except as otherwise provided herein, terms defined in the Loan Agreement shall have the same meaning when used herein. Terms defined in the singular shall have the same meaning when used in the plural and vice versa. | 29Definitions
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This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Facsimile or PDF execution and delivery of this Agreement by either Party followed by exchange of original signatures will constitute a legal, valid and binding execution and delivery of this Agreement by such Party. | 26Counterparts
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Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating any other provision of this Agreement. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement and the other Transaction Documents be consummated as originally contemplated to the greatest extent possible. | 79Severability
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This Amendment may be signed in counterparts (by facsimile transmission or otherwise), but all of which together shall constitute one and the same instrument. | 26Counterparts
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If, at any time, a reviewing court of appropriate jurisdiction called upon to issue an injunction in accordance with Section 10(l) finds any of the provisions of this Section 10 to be invalid or unenforceable under any applicable law, by reason of being vague or unreasonable as to area, duration, or scope of activity, this Agreement shall be considered divisible and such court shall have authority to modify or blue pencil this Agreement to cover only such area, duration, and scope as shall be determined to be reasonable and enforceable by the court. Executive and the Company agree that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein. | 60Modifications
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No Borrower will, directly or, to its knowledge, indirectly, use any part of the proceeds of any Loan in violation of the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, and other similar anti-corruption legislation in other jurisdictions in which the Company or any of its Subsidiaries conduct business, applicable Sanctions and the Act. | 92Use Of Proceeds
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All payments and collections made by or from the Pledgors under this Agreement shall be deemed to be payments pursuant to, and each Pledgor hereby agrees to be bound by, the provisions of Section 5.9 [Taxes] of the Credit Agreement and each Pledgor shall make all payments free and clear of Taxes as provided therein. | 87Taxes
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The term of this Agreement shall begin on the Effective Date and shall continue in force until June 29, 2017 and shall automatically renew for successive 90 day periods unless the Service Provider, on the one hand, or ARCH or the OP, on the other hand, delivers written notice to the other at least forty (40) days prior the expiration of the initial term or any renewal term (the “ Term ”). The provisions of this Section 5 and Sections 6-15 shall survive the expiration or earlier termination of this Agreement. | 89Terms
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This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned by either Party, without the prior written consent of the other Party. Notwithstanding the foregoing, Buyer shall be permitted to assign its rights and obligations under this Agreement and any other Ancillary Agreement, individually or collectively, to one or more wholly-owned, direct or indirect subsidiaries with prior written notice to Seller; provided , however , that no such assignment shall relieve Buyer of, or constitute a discharge of, any of Buyer’s liabilities and obligations under this Agreement. | 7Assignments
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This Release Agreement constitutes the sole and entire agreement between the Parties regarding the subject matter addressed herein, and supersedes any and all understandings and agreements that may have been reached earlier on this subject matter, with the exception of the continuing obligations outlined in this paragraph. | 38Entire Agreements
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Notwithstanding the termination of this Agreement by Employee or the Company, the provisions of Sections 4, 5, 6, 7, 8, 9, 11 and 13 shall survive such termination as if this Agreement remained in full force and effect, and no such termination shall terminate the covenants and obligations in said Sections hereof. | 85Survival
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The Committee may make or provide for such adjustments as provided for in Section 4.3 of the Plan. | 0Adjustments
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This Agreement shall be governed by, enforced, and construed under and in accordance with the laws of the United States of America and, with respect to matters of state law, with the laws of Delaware. Any dispute arising under or in any way related to this Agreement will be determined exclusively in the Federal or State Courts, for the County of New York, State of New York. | 47Governing Laws
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This Agreement may be executed in any number of parts, all of which taken together shall be considered to comprise one and the same document, and this Agreement shall become binding on all Parties when each Party has completed delivery of an executed counterpart copy to the other Parties. Delivery may be effected by actual delivery or by electronic transmission of an executed counterpart copy to the other Parties. | 26Counterparts
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The Initial Borrower shall not, and shall not permit any Restricted Subsidiary to, create or Incur any Lien (other than Permitted Liens) that secures obligations under any Indebtedness on any asset or property of the Initial Borrower or any Restricted Subsidiary. | 57Liens
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All notices, requests and demands to or upon the U.S. ABL Collateral Agent or any Granting Party hereunder shall be effected in the manner provided for in subsection 11.2 of the ABL Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be addressed to such Guarantor at its notice address set forth on Schedule 1 , unless and until such Guarantor shall change such address by notice to the U.S. ABL Collateral Agent and the Administrative Agent given in accordance with subsection 11.2 of the ABL Credit Agreement. | 65Notices
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Employee is employed by the Company on an at-will basis meaning that either party may terminate the relationship at any time, with or without cause, and without providing a reason for such termination. | 35Employment
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The execution, delivery and performance of the Transaction Agreements by the Company and the Shareholder, as the case may be, and the consummation by the Company and the Shareholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Organizational Documents; (ii) to the knowledge of Shareholder, 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 (with or without notice, lapse of time, or both) of, any agreement, credit facility, indenture or instrument (evidencing a debt or otherwise) to which the Company or the Shareholder is a party or by which any property or asset of the Company or the Shareholder is bound or affected; or (iii) to the knowledge of Shareholder, result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or the Shareholder is subject (including federal and state securities laws and regulations), except in the case of each of clauses (ii) and (iii), as could not, individually or in the aggregate, reasonably be expected to have or result in a Company Material Adverse Effect. To the knowledge of Shareholder, the business of the Company is not being conducted in violation of any law, ordinance or regulation of any governmental authority, except for violations which, individually or in the aggregate, could not reasonably be expected to have or result in a Company Material Adverse Effect. | 61No Conflicts
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If a court or arbitrator with proper jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions of this Agreement remain in full force. The Parties will negotiate in good faith to replace such illegal, invalid, or unenforceable provision with a legal, valid, and enforceable provision that carries out the Parties’ intentions to the greatest lawful extent under this Agreement. | 79Severability
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This Agreement, the Company's Intellectual Property Agreement, and the Restricted Stock Units Agreement, shall supersede and replace all prior agreements or understandings relating to the subject matter hereof, and no agreement, representations or understandings (whether oral or written or whether express or implied) which are not expressly set forth in this Agreement have been made or entered into by either party with respect to the relevant matter hereof. | 38Entire Agreements
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The headings in this Agreement are for purposes of reference only and shall not be considered in construing this Agreement. | 48Headings
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As and to the extent provided in Section 10.5 of the Credit Agreement, the Borrower agrees to reimburse the Administrative Agent for its and the Lead Arrangers’ reasonable out-of-pocket expenses incurred by them in connection with this Amendment, including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP , counsel for the Administrative Agent. | 41Expenses
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If the Executive’s employment terminates during the Term by reason of the Executive’s Disability, this Agreement shall terminate without further obligations to the Executive under this Agreement, other than for payment of Accrued Obligations, and any incentive compensation for the year in which the termination occurs prorated through the Date of Termination and any benefits under such plans, programs, practices and policies relating to disability benefits, if any, as in effect on the Date of Termination. | 30Disability
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Through the Retirement Date, Executive shall continue to participate in the employee benefit and executive perquisite plans and programs in which he is participating on the Effective Date. On the Retirement Date, Executive’s participation in any Company employee compensatory and/or benefit plans, programs or arrangements (including, without limitation, any matching contributions under the Company’s 401(k) plan, life insurance premium programs, medical programs, ones available to only senior executive officers, and other personal benefits and perquisites) shall cease, except as otherwise expressly provided in this Agreement or in the applicable Company plan. For the avoidance of doubt, Executive shall not be eligible for severance benefits under any Company plan. | 12Benefits
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This Agreement and , the other Loan Documents , and any separate letter agreements with respect to fees payable to the Agents, represent the entire agreement of the Borrower, the Agents, the Arrangers, the Issuing Lender and the Lenders with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any Person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of the Issuing Lender that issues any Letter of Credit) and, to the extent expressly contemplated hereby or thereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Issuing Lender and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents. | 52Integration
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(a) Unless otherwise defined herein, capitalized terms defined in the Collateral Trust Agreement and used herein shall have the meanings given to them in the Collateral Trust Agreement, and the following capitalized terms are used herein as defined in the New York UCC (and if defined in more than one Article of the New York UCC shall have the meanings given in Article 9 thereof): Accounts, Account Debtor, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract, Commodity Intermediary, Deposit Account, Documents, Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures, General Intangibles, Goods, Instruments, Inventory, Letter of Credit, Letter of Credit Rights, Money, Payment Intangibles, Securities Account, Securities Intermediary, Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security. | 29Definitions
|
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. | 79Severability
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The headings of the Paragraphs of this Agreement are for convenience only and shall not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement. | 48Headings
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This Agreement and any covenants and agreements incorporated herein by reference as set forth in Section 7 together constitute the entire agreement between the parties in respect of the subject matter contained herein and therein and supersede all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral, provided, however, that for the avoidance of doubt, all Other Arrangements (as such Other Arrangements may be amended, modified or terminated from time to time) shall remain in effect in accordance with their terms, subject to Section 3(e) hereof. This Agreement may be amended or modified only with the written consent of Executive and an authorized representative of the Company. No oral waiver, amendment or modification will be effective under any circumstances whatsoever. | 38Entire Agreements
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Upon the reasonable request of the Administrative Agent, promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents for filing under the provisions of the UCC or any other Requirement of Law which are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Secured Parties, Liens on the Collateral that are duly perfected in accordance with the requirements of, or the obligations of the Loan Parties under, the Loan Documents and all applicable Requirements of Law. | 45Further Assurances
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All representations and warranties contained herein will survive the execution and delivery of this Agreement. | 98Warranties
|
OCLL has been and is in compliance with, and has not received any notice of any violation of any, applicable law, order, ordinance, regulation or rule of any kind whatsoever, including without limitation the Securities Act, the Exchange Act, the applicable rules and regulations of the SEC or the applicable securities laws and rules and regulations of any state. | 19Compliance With Laws
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The Company agrees to pay the Executive an annual Base Salary at the rate of Five Hundred Thousand Dollars ($500,000.00), less applicable withholding. This Base Salary will be subject to annual review and may be increased from time to time in the discretion of the Company, based on factors such as the Executive’s responsibilities, compensation of similar executives within the Company and in other companies, the Executive’s performance, and other pertinent factors. Such Base Salary shall be payable in accordance with the Company's customary practices applicable to its executives. | 11Base Salary
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Unless otherwise defined herein, all capitalized terms used herein that are defined in the Securities Purchase Agreement or the Streaming Agreement (as context dictates) shall have their respective meanings as therein defined. | 28Defined Terms
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The Facility Documents and each Transaction is not entered into in contemplation of insolvency or with intent to hinder, delay or defraud any of the Sellers’ creditors. No Seller is insolvent within the meaning of 11 U.S.C. Section 101(32) and the entering into of a Transaction pursuant hereto (i) will not cause a Seller to become insolvent, (ii) will not result in any property remaining with a Seller to be unreasonably small capital, and (iii) will not result in debts that would be beyond a Seller’s ability to pay as same mature. Each Seller has received reasonably equivalent value in exchange for the transfer of the Purchased Assets. | 80Solvency
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The Company shall employ Executive, and Executive hereby accepts employment with the Company, upon the terms and conditions set forth in this Agreement. The initial term of employment under this Agreement (the “ Initial Term ”) shall be for the period beginning on June 20, 2016 (the “ Start Date ”) and ending on the third (3 rd ) anniversary thereof, unless earlier terminated as provided in Section 4 . The employment term hereunder shall be automatically renewed for successive one-year periods (each an “ Extension Term ” and together with the Initial Term, the “ Employment Period ”), unless either party hereto gives written notice of non-renewal to the other no later than ninety (90) days prior to the expiration of the Initial Term or any Extension Term, as applicable. | 35Employment
|
This Agreement constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with respect to the subject matter hereof. The Agreement is executed without reliance upon any promise, warranty or representation, written or oral, by any party or any representative of any party other than those expressly contained herein and it supersedes any other such promises, warranties or representations. You acknowledge that you have carefully read this Agreement, have been afforded the opportunity to be advised of its meaning and consequences by an attorney, and signed the same of your own free will. This Agreement may not be amended or modified except in writing signed by both you and the Company’s Chief Legal Officer. Each party will bear its own costs or fees incurred in connection with the making of this Agreement. | 38Entire Agreements
|
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 11, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 WHERE THE DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS REPRESENTATIVES. | 75Remedies
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The Company shall have the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in whole or reduce each Lender’s Pro Rata Share of the Unused Revolving Credit Commitments. Each partial reduction of the Revolving Credit Commitments shall be in the aggregate amount of at least $10,000,000 or a larger whole multiple of $1,000,000. If, after giving effect to any reduction of the Unused Revolving Credit Commitments, the aggregate Swing Line Commitments exceeds the aggregate amount of the Revolving Credit Commitments at such time, the aggregate Swing Line Commitments shall be automatically reduced by the amount of such excess. The Company shall have the right, upon at least three Business Days’ notice to the Administrative Agent and each Swing Lender, to terminate in whole or permanently reduce in part the Swing Line Commitments of the Swing Line Lenders ratably; provided that each partial reduction shall be in the aggregate amount of $10,000,000. On the Termination Date, if the Borrowers have made the Term Loan Election in accordance with Section 2.07(a), and from time to time thereafter upon each prepayment of the Advances, the Revolving Credit Commitments of the Lenders shall be automatically and permanently reduced on a pro rata basis by an amount equal to the amount by which (i) the aggregate Revolving Credit Commitments immediately prior to such reduction exceeds (ii) the aggregate unpaid principal amount of all Advances outstanding at such time. | 88Terminations
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Although the Company and each Affiliate anticipates that it will continue the Plan for an indefinite period of time, there is no guarantee that the Company or any such Affiliate will continue the Plan or will not terminate the Plan at any time in the future. Accordingly, the Company reserves the right to discontinue sponsorship of the Plan and/or to terminate the Plan at any time with respect to any or all of its participating Employees, by action of the Board of Directors. Notwithstanding the foregoing, except as otherwise permitted by Section 409A, in the event of any termination of the Plan, any amounts payable under the Plan shall continue to be paid in accordance with the terms of the Plan in effect on the date of Plan termination. | 88Terminations
|
Allquestionsconcerningthe construction, validity, enforcementandinterpretationofthisNoteshallbegovernedbyandconstruedandenforcedinaccordancewiththeinternallawsoftheStateofNewYork,withoutregardtotheprinciplesofconflictoflawsthereof.Eachparty agrees thatalllegalproceedings concerning the interpretation,enforcementanddefenseofthetransactionscontemplatedbyanyoftheTransactionDocuments(whetherbroughtagainstapartyheretooritsrespectiveAffiliates,directors,officers,shareholders, employees oragents)shallonlybecommencedinthestateandfederalcourtssittinginNewYork,NewYork(the“NewYorkCourts”).EachpartyheretoherebyirrevocablysubmitstotheexclusivejurisdictionoftheNewYorkCourtsfortheadjudicationofany dispute hereunderorinconnectionherewithorwithanytransactioncontemplatedherebyordiscussedherein(includingwithrespecttotheenforcementofanyoftheTransactionDocuments),andherebyirrevocablywaives,andagreesnot to assert in anysuit, action orproceeding,anyclaimthatitisnotpersonallysubjecttothejurisdictionofsuchNewYork Courts, orsuchNewYorkCourtsareimproperorinconvenientvenueforsuchproceeding.Eachpartyherebyirrevocablywaivespersonalserviceofprocessandconsentstoprocessbeingservedinanysuchsuit,actionorproceedingbymailingacopythereofviaregisteredorcertifiedmailorovernightdelivery(withevidenceofdelivery)tosuchpartyattheaddressineffectfornoticestoitunderthis Note andagreesthatsuchserviceshallconstitutegoodandsufficientserviceofprocessandnoticethereof.Nothingcontainedhereinshallbedeemedtolimitinany way anyrighttoserveprocessinanyothermannerpermittedbyapplicableLaw.Eachparty hereto herebyirrevocablywaives,tothefullestextentpermittedbyapplicableLaw,anyandallrighttotrialbyjuryinanylegalproceedingarisingoutoforrelatingtothisNoteorthetransactionscontemplatedhereby. | 47Governing Laws
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Not to assign or sublet all or any portion of the Premises without the prior written consent of the Landlord which consent shall not be unreasonably withheld or delayed. In the event Landlord consents to a subletting or assignment of all or any portion of the Premises, it shall be a condition of any such subletting or assignment that the sublessee or assignee agree in writing with Landlord to be bound by each and every term, covenant and condition contained in this Lease. Tenant shall have the right, without Landlord’s consent, to assign this Lease to an entity controlling, controlled by or under common control with Tenant or to a corporation into which Tenant is merged or consolidated so long as, on the completion of such merger, consideration, acquisition or assumption, the successor has a net worth not less than the Tenant’s net worth, immediately prior to such merger, consolidation, acquisition or assumption. No assignment or subletting shall relieve the Tenant of its obligations hereunder. It shall be a condition to any assignment that the assignee shall agree to be bound by all obligations of the Tenant coming due after such assignment and that Landlord may rely on such agreement. | 7Assignments
|
Each party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as any party may reasonably request or as may be reasonably necessary or appropriate to effectuate, consummate and perform any other terms, provisions, or conditions of this First Amendment or the Original Agreement. | 24Cooperation
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Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties to this Agreement (whether by operation of law or otherwise) without the prior written consent of the other parties to this Agreement, and any purported assignment or other transfer without such consent shall be void and unenforceable; provided , however , that (a) a change of control of any party hereto (whether by a purchase of equity interests or all or substantially all assets, merger, consolidation or other reorganization of such party) shall not be considered an assignment and (b) each of Element and Celadon may assign this Agreement, including its rights, interests and obligations hereunder, to one or more of its Permitted Transferees (as defined in the LLC Agreement) without the consent of the other parties to this Agreement; provided , further , that no such assignment shall reduce any liabilities hereunder of Element or Celadon, as applicable. | 7Assignments
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This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. | 36Enforceability
|
Subject to the satisfaction of the conditions set forth in Section 7 below and in reliance upon the representations and warranties of Borrowers set forth in Section 8 below, Lenders hereby (a) consent to (i) the prepayment in full of the Term Loan Debt and (ii) the Equity Issuance, but only so long as the Net Cash Proceeds received by Parent is at least $60,000,000 and the Term Loan Debt is contemporaneously repaid in full with such Net Cash Proceeds and $12,766,009.64 of Revolving Loans, and (b) waives the requirement set forth in Section 2.3(a)(ii) of the Credit Agreement to provide a request for Borrowing by 12:00 noon one Business Day prior to the proposed Borrowing to be made on the date of this Amendment. This is a limited consent and shall not be deemed to constitute a consent to any other modification of the Loan Documents, and shall not be deemed to prejudice any right or rights which Agent or the Lenders may now have or may have in the future under or in connection with any Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended from time to time. | 22Consents
|
All Consents shall have been obtained and copies shall have been delivered to Buyer. | 22Consents
|
The Administrative Agent may take such action and carry out such functions under this Agreement as are authorized to be performed by it pursuant to the terms of this Agreement, any other Related Document or otherwise contemplated hereby or thereby or are reasonably incidental thereto; provided , that the duties of the Administrative Agent set forth in this Agreement shall be determined solely by the express provisions of this Agreement, and, other than the duties set forth in Section 11.02 , any permissive right of the Administrative Agent hereunder shall not be construed as a duty. | 10Authorizations
|
Other than Eastdil Secured, L.L.C. (“ Named Broker ”) which Sellers hereby represent has been engaged pursuant to a separate agreement between Sellers and Named Broker, Sellers and Purchaser each represent and warrant to the other, that they know of no brokers or other persons or entities who have been instrumental in submitting or showing the Properties to, or procuring Purchaser, or entitled to any commission in connection therewith (herein referred to as “ Broker ”). If any claim for a broker’s commission, finder’s fee or other like payment in connection with the submission of the Properties or the negotiation, execution or consummation of the transaction herein provided (a “ Broker’s Claim ”) other than by Named Broker is asserted against Sellers or their affiliates, members, officers, directors, shareholders, partners, agents, employees or advisors, Purchaser shall indemnify, defend and hold harmless Sellers and their affiliates, members, officers, directors, shareholders, partners, agents, employees and advisors from and against any and all loss, damage, liability or expense, including costs and reasonable attorneys’ fees, which Sellers or their affiliates, members, officers, directors, shareholders, partners, agents, employees or advisors may incur or sustain by reason of such Broker’s Claim if the Broker’s Claim is based upon any statement, representation or agreement shown to have been made or entered into by Purchaser or its agents or representatives. If any such Broker’s Claim is asserted against Purchaser or Purchaser’s affiliates, members, officers, directors, shareholders, partners, agents, employees or advisors, Sellers shall indemnify, defend and hold harmless Purchaser and Purchaser’s affiliates, members, officers, directors, shareholders, partners, agents, employees and advisors from and against any and all loss, damage, liability or expense, including costs and reasonable attorneys’ fees (“ Damages ”), which Purchaser or Purchaser’s affiliates, members, officers, directors, shareholders, partners, agents, employees or advisors may incur or sustain by reason of such Broker’s Claim if the Broker’s Claim is based upon any statement, representation or agreement shown to have been made or entered into by Sellers or their agents or representatives. The terms of this Article 14 shall survive the termination of this Agreement and shall also survive Closing and shall not be deemed to merge into the Deed. | 15Brokers
|
The Assignment of Management Agreement, executed by Seller and Manager, including the Seller release, pursuant to Section 6.8 . | 7Assignments
|
Each of the Parties will use all commercially reasonable efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing conditions set forth in Article 5 below). Except as specifically required by this Agreement, the Parties shall not knowingly take any action, or knowingly refrain from taking any action, the effect of which would be to delay or impede the ability of the Parties to consummate the transactions contemplated by this Agreement. | 46General
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All notices to the Company hereunder shall be delivered to the attention of the Administrative Committee. Any notice or filing required or permitted to be given to the Company under this Plan shall be sufficient if in writing and hand delivered, or sent by registered or certified mail, to the Administrative Committee. | 65Notices
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