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This Amendment shall become effective as of the first date (the “ First Amendment Effective Date ”) on which the Administrative Agent (or its counsel) shall have received duly executed counterparts hereof that bear the authorized signatures of Borrower. | 34Effectiveness
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All representations and warranties contained in this Agreement (as made as of its date) or contained in certificates (as of their respective dates) submitted pursuant hereto shall remain operative and in full force and effect and shall survive the Closing Date for a period of 18 months. | 76Representations
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The corporate law of the State of Nevada shall govern all issues and questions concerning the relative rights of the Corporation and its stockholders. All other issues and questions concerning the construction, validity, interpretation and enforcement of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. | 47Governing Laws
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Except for actions for injunctive or other equitable relief, which may be brought in any court of competent jurisdiction, any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal court in the Northern District of California or in state court in the County of San Mateo, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. | 56Jurisdictions
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Subtenant shall not assign, sublease, mortgage, pledge or hypothecate its subleasehold interest or any part thereof, whether by operation of law or otherwise, without the prior written approval of Sublandlord, which approval shall not be unreasonably withheld conditioned or delayed. Any purported assignment, sublease or other pledge or conveyance in violation of this provision shall be null, void and of no legal effect. The merger of Subtenant with any other entity or the transfer of any controlling or managing ownership or beneficial interest in Subtenant, or the assignment of a substantial portion of the assets of Subtenant, whether or not located at the Premises, shall not constitute an assignment hereunder. | 7Assignments
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There shall be no material Litigation or material investigations pending or, to the knowledge of Borrower or any other Loan Party, threatened against Borrower or any other Loan Party which have not been disclosed to Agent in writing and which could have or could reasonably be expected to have a Material Adverse Effect. | 58Litigations
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Neither the execution and delivery by the Borrower or any of the Guarantors, if any, of the Loan Documents to which any of them is a party, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the REIT or any of its Subsidiaries or the REIT’s or any Subsidiary’s articles of incorporation, by-laws, articles of organization, articles of formation, certificates of trust, limited partnership certificates, operating agreements, trust agreements, or limited partnership agreements, or the provisions of any indenture, instrument or agreement to which the REIT or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, except where such violation, conflict or default would not have a Material Adverse Effect, or result in the creation or imposition of any Lien (other than Permitted Liens set forth in Section 6.16 ) in, of or on the Property of the REIT or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required for the legality, validity, binding effect or enforceability of, any of the Loan Documents. | 61No Conflicts
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The Parties agree that the covenants and obligations contained in this Agreement relate to special, unique, and extraordinary matters and that a violation of any of the terms of this Agreement would cause irreparable injury in an amount which would be impossible to estimate or determine and for which any remedy at law would be inadequate. Therefore, the Parties agree that if either Party fails or refuses to fulfill any of its obligations under this Agreement or to make any payment or deliver any instrument required under this Agreement, then the other Party shall have the remedy of specific performance, and this remedy shall be cumulative and nonexclusive and shall be in addition to any other rights and remedies otherwise available under any other contract or at law or in equity and to which that Party might be entitled. | 75Remedies
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Lender’s failure at any time to require strict performance by any Forbearance Party of any provision or term of the Loan Documents or this Agreement shall not waive, affect or diminish any right of Lender thereafter to demand strict compliance and performance therewith. Any suspension or waiver by Lender of a Forbearance Event of Default or any Event of Default shall not, except as may be expressly set forth herein, suspend, waive or affect any other Forbearance Event of Default or any Event of Default, whether the same is prior or subsequent thereto and whether of the same or of a different kind or character. None of the undertakings, agreements, warranties, covenants and representations of any Forbearance Party contained in this Agreement or the Loan Documents, and no Forbearance Event of Default or Event of Default, shall be deemed to have been suspended or waived by Lender unless such suspension or waiver is (a) in writing and signed by Lender, and (b) delivered to the Forbearance Parties. | 63No Waivers
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No provisions of this Agreement may be modified, waived or discharged, and this Agreement may not be terminated before the end of the Term, unless such waiver, modification, discharge or termination is agreed to in a writing signed by Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof, have been made by either party which is not set forth expressly in this Agreement. | 59Miscellaneous
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The audited December 31, 2016 and the unaudited March 31, 2017 and June 30, 2017 consolidated financial statements of the Parent and its consolidated subsidiaries heretofore delivered to the Lenders fairly present, in all material respects, the consolidated financial condition and consolidated results operations of the Parent and its consolidated subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end adjustments and the absence of footnotes in the case of the unaudited statements. | 43Financial Statements
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Upon a Change in Control that occurs while Employee is employed by the Company or its subsidiaries, the RSUs shall, subject to Section 18 of the Plan, continue to vest based on Employee’s continued employment with the Company (including any successor to the Company resulting from the Change in Control) and its subsidiaries in accordance with the vesting schedule set forth in Section 2 and all other terms and conditions of this Agreement; provided, however, that if, on or within two (2) years after the date of the Change in Control and prior to when the RSUs have been settled in full, the Employee’s status as an employee of the Company (including any successor to the Company resulting from the Change in Control) or any of its subsidiaries is terminated by the Company or any of its subsidiaries without Cause, or as a result of the Employee’s death or Disability or pursuant to Section 3(a) above, then any unvested RSUs (and any related Dividend Equivalents) shall automatically vest in full as of the Employment Termination Date and shall be settled on or as soon as administratively practicable (but, subject to Section 18 below, in no event later than 2.5 months) after the Employment Termination Date. | 17Change In Control
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Each of the parties shall pay its own expenses in connection with the transactions contemplated hereby. | 41Expenses
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All rent under this Sub-Sublease shall be paid without deduction or setoff of any kind, except as otherwise provided in this Sub-Sublease, the Lease or the Sublease, at the address of Sub-Sublandlord set forth above or to such other address as Sub-Sublandlord may designate in writing to Sub-Subtenant. Rent for any partial calendar month shall be prorated based on a thirty-day month. | 68Payments
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Any payment to be made by Borrower under this Agreement shall be made not later than 12:00 p.m., Pacific Time, on the date of payment to the bank accounts designated by Lender for the making of payments hereunder and shall be made by wire transfer of immediately available funds to such designated bank account, marked for attention as indicated, or in any other manner or any other place as may be directed, in writing, by Lender. All payments to be made to or for the account of Lender under this Agreement shall be made without setoff or counterclaim, and clear of and without deduction for any taxes or amounts in consequence of taxes, including any stamp, registration or other like taxes payable on or in respect of the, and of any levies, imposts, duties, charges, fees, deductions, withholdings, restrictions and conditions of any nature now or hereafter imposed by any governmental agency unless Borrower is compelled by law to deduct or withhold any such taxes, levies, imposts, duties, charges, fees or deductions in respect of Lender. If Borrower is so compelled, Borrower will, concurrently with any such payment hereunder, pay the necessary amount to enable Lender to receive a net amount equal to the full amount which Lender would have received had no such deduction been made. | 46General
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During the Term, Executive shall receive a base salary of $315,000 per annum, subject to withholdings and deductions and which shall be paid to Executive in accordance with the customary payroll practices and procedures of the Company. During the Term, Executive shall not be entitled to any additional bonus compensation. | 11Base Salary
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No Eligible Person shall have the right to be selected to receive an Award under the Plan, or, having been so selected, to be selected to receive a future Award. | 67Participations
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Each of the Buyer and the Buyer Parent has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Buyer and the Buyer Parent of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation by the Buyer and the Buyer Parent of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action. This Agreement has been, and upon their execution each of the Ancillary Agreements to which the Buyer and the Buyer Parent will be a party will have been, duly executed and delivered by the Buyer and the Buyer Parent and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which the Buyer and the Buyer Parent will be a party will constitute, the legal, valid and binding obligations of the Buyer and the Buyer Parent, enforceable against the Buyer and the Buyer Parent in accordance with their respective terms. | 9Authority
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The Officer agrees that her obligations under Sections 5, 6, 8 and 9 of this Agreement shall survive the termination of her employment or the Agreement Term, regardless of the reason for such termination. | 85Survival
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The issuance of the Restricted Share Units or unrestricted Share Units pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act, the Exchange Act, the Corporations Act, and in each case any respective rules and regulations promulgated thereunder) and any other law or regulation applicable thereto. The Company shall not be obligated to issue the Restricted Share Units or any of the Shares pursuant to this Agreement if any such issuance would violate any such requirements. | 19Compliance With Laws
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All transfer taxes ( e.g. , goods and services tax, value added tax, sales tax, service tax, business tax) imposed directly on or solely as a result of the sale, transfer or delivery of Qualified Probed Wafers and the payments therefor provided herein shall be stated separately on Micron’s invoice, shall be the responsibility of and collected from Intel, and shall be remitted by Micron to the appropriate tax authority (“ Recoverable Taxes ”), unless Intel provides valid proof of tax exemption prior to the effective date of the transfer of the Qualified Probed Wafers or otherwise as permitted by law prior to the time Micron is required to pay such taxes to the appropriate tax authority. When property is delivered within jurisdictions in which collection and remittance of taxes by Micron is required by law, Micron shall have sole responsibility for remittance of said taxes to the appropriate tax authorities. In the event such taxes are Recoverable Taxes and Micron does not collect tax from Intel or remit such taxes to the appropriate Governmental Entity on a timely basis, and is subsequently audited by any tax authority, liability of Intel will be limited to the tax assessment for such Recoverable Taxes, with no reimbursement for penalty or interest charges or other amounts incurred in connection therewith. Notwithstanding anything herein to the contrary, taxes other than Recoverable Taxes shall not be reimbursed by Intel, and each Party is responsible for its own respective income taxes (including franchise and other taxes based on net income or a variation thereof), taxes based upon gross revenues or receipts, and taxes with respect to general overhead, including but not limited to business and occupation taxes, and such taxes shall not be Recoverable Taxes. | 87Taxes
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No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. Any agreement on the part of either party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party. | 97Waivers
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The Company agrees to employ the Executive, and the Executive hereby accepts such employment commencing as of the Commencement Date and continuing, until terminated in accordance with the provisions of Section 3. The Executive’s employment with the Company shall be “at will,” meaning that the Executive’s employment may be terminated by the Company or the Executive at any time and for any reason subject to the terms of this Agreement. The time period between the Commencement Date and the Date of Termination shall be referred to herein as the “Term”. | 89Terms
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All corporate actions on the part of Holder, its officers, directors and stockholders necessary for the authorization, execution and delivery of the Warrant have been taken. Holder has the requisite corporate power to enter into the Warrant and to carry out and perform its obligations thereunder. The Warrant, when executed and delivered by Holder, shall be duly authorized, executed and delivered and, upon due execution and delivery by the Company. The Warrant will be a valid and binding agreement of Holder, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by equitable principles. | 10Authorizations
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This Amendment may be executed in any number of identical counterparts, each of which will constitute an original but all of which when taken together will constitute but one instrument. Facsimile or email signatures shall be given the same force and effect as original signatures. | 26Counterparts
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I recognize that nothing in this Agreement is intended to limit any remedy of the Company under applicable trade secrets laws. I recognize that my violation of this Agreement could cause the Company irreparable harm, the amount of which may be extremely difficult to estimate, making any remedy at law or in damages inadequate. Therefore, I agree that the Company shall have the right to apply to any court of competent jurisdiction for an order restraining any breach or threatened breach of this Agreement and for any other relief the Company deems appropriate. This right shall be in addition to any other remedy available to the Company. | 75Remedies
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All of the issued shares of capital stock of each subsidiary of Group have been duly and validly authorized and issued, are fully paid and non assessable and are owned directly or indirectly by Group, free and clear of all liens, encumbrances, equities or claims, except as would not, individually or in the aggregate have an Issuer Material Adverse Effect . | 83Subsidiaries
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Notices under this Agreement must be in writing and will be deemed given when delivered in person, one business day after being sent by overnight courier, or four business days after being mailed by certified mail. Notices to Corporation must be addressed to Barrett Business Services, Inc., Attention: Chairman of the Board, at Corporation's headquarters address. Notices to Executive are to be sent to the last address Executive has provided from time to time to Corporation's human resources department. Either party may change its address for notices by giving notice of the change to the other party. | 65Notices
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This Agreement (including all exhibits attached hereto and all Rolling Forecasts and purchase orders provided to Manufacturer hereunder) and the Quality Agreement (when such agreement has been executed) constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous communications, representations, or agreements, either verbal or written between the Parties, including the Original Agreement, with respect to such subject matter. Each Party confirms that it is not relying on any representations or warranties of the other Party except as specifically set forth herein. | 38Entire Agreements
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A one-time Interest charge of 10% shall be applied to the Principal Sum. The Interest is in addition to the OID, and that OID remains payable regardless of time and manner of payment by the Issuer. The Issuer may repay a payment of Consideration under this Note (i) at any time on or before 90 days after its Effective Date in an amount equal to 120% of the sum of the Principal Sum being repaid plus all accrued and unpaid interest, OID, liquidated damages, fees and other amounts due on such Principal Sum, or (ii) at any time after 90 days and on or before 180 days after its Effective Date in an amount equal to 130% of the sum of the Principal Sum being repaid plus all accrued and unpaid interest, OID, liquidated damages, fees and other amounts due on such Principal Sum. The Issuer may not repay any payment of Consideration after 180 days after its Effective Date prior to its Maturity Date without written approval from the Investor. | 54Interests
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The Participant acknowledges that any income or other taxes due from him or her with respect to this Option or the Shares issuable pursuant to this Option shall be the Participant’s responsibility. The Participant acknowledges and agrees that (i) the Participant was free to use professional advisors of his or her choice in connection with this Agreement, has received advice from his or her professional advisors in connection with this Agreement, understands its meaning and import, and is entering into this Agreement freely and without coercion or duress; (ii) the Participant has not received and is not relying upon any advice, representations or assurances made by or on behalf of the Company or any Affiliate or any employee of or counsel to the Company or any Affiliate regarding any tax or other effects or implications of the Option, the Shares or other matters contemplated by this Agreement; and (iii) neither the Administrator, the Company, its Affiliates, nor any of its officers or directors, shall be held liable for any applicable costs, taxes, or penalties associated with the Option if, in fact, the Internal Revenue Service were to determine that the Option constitutes deferred compensation under Section 409A of the Code. | 87Taxes
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GHM is not (and has not been) a party to any suit, action, arbitration, or legal, administrative, or other proceeding, or pending governmental investigation. To the best knowledge of Purchaser, there is no basis for any such action or proceeding and no such action or proceeding is threatened against Purchaser. Purchaser is not subject to or in default with respect to any order, writ, injunction, or decree of any federal, state, local, or foreign court, department, agency, or instrumentality. | 58Litigations
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Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 9.07 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited. | 79Severability
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(i) [Reserved] and (ii) the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date. | 76Representations
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This letter agreement shall be governed by and construed in accordance with the laws of the State of Missouri without reference to principles of conflict of laws. | 47Governing Laws
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Employee agrees that Employee will not, directly or indirectly, make any disparaging, derogatory, or defamatory remarks about Employer, any of its affiliates, or any of Employer’s or such affiliates’ executives, officers, directors, or managers, and Employee further agrees not to make any negative comments to the media, or otherwise attempt to generate negative publicity about Employer, any of its affiliates, or any of Employer’s or such affiliates’ executives, officers, directors, or managers. Nothing contained in this paragraph or any other provision of this Agreement shall prevent Employee from (i) making or initiating communications directly with, responding to any inquiry from, volunteering information to, making reports to, or testifying truthfully before any governmental or self-regulatory agency or entity, including but not limited to the U.S. Securities and Exchange Commission, regarding possible violations of law or regulation, or (ii) engaging in concerted activity protected by the National Labor Relations Act or other applicable law or regulation, and Employee is not required to advise or seek permission from Employer prior to engaging in any such activity; provided, however , that in connection with any such activity with a governmental or self-regulatory agency or entity, Employee shall inform such agency or entity that the information Employee is providing is confidential and, provided further that Employee is not permitted to reveal any information that is protected by the attorney-client privilege or attorney-work product protection or any other privilege belonging to Employer. | 64Non-Disparagement
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Each Grantor hereby covenants and agrees that with respect to any Letter of Credit Rights pertaining to letters of credit described in clause (a)(ii) above hereafter arising it shall promptly and in no event later than thirty (30) days of its obtaining rights in such Letter of Credit Rights use its commercially reasonable efforts to obtain the consent of the issuer thereof to the assignment of the proceeds of such letter of credit to the Term Collateral Agent and shall deliver to the Term Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A, together with all supplements to Schedules thereto. | 1Agreements
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No amendment or waiver of any provision of this Agreement nor consent to any departure by any Originator therefrom shall in any event be effective unless the same shall be in writing and signed by Buyer, Administrative Agent and (if an amendment) such Originator, and if such amendment or waiver affects the obligations of the Performance Guarantor, the Performance Guarantor consents in writing thereto, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No Originator may amend or otherwise modify any other Transaction Document executed by it without the written consent of Buyer and Administrative Agent, and if such amendment or waiver affects the obligations of the Performance Guarantor, the Performance Guarantor consents in writing thereto. | 2Amendments
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Headings have been inserted for convenience of reference only and are not to affect interpretation. | 48Headings
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Executive and the Company acknowledge and agree that they are bound by the Company’s Fair Treatment Process that is attached hereto as Attachment D (the “ FTP ”). The procedures of the FTP are hereby expressly incorporated by reference into this Separation Agreement, and Executive and the Company agree that any disputes between the Parties, which are subject to binding arbitration, shall begin at Step 5 (Final and Binding Arbitration) of the FTP; provided , however , that nothing in this Separation Agreement or the FTP shall require arbitration of any Claims which, by law, cannot be the subject of a compulsory arbitration agreement, and nothing in this Separation Agreement or the FTP shall be interpreted to mean that Executive is precluded from filing complaints with the federal Equal Employment Opportunity Commission or the National Labor Relations Board. Notwithstanding the foregoing and the FTP, both of the Parties shall have the right to (a) seek a restraining order or other injunctive or equitable relief or order in aid of arbitration or to compel arbitration, from a court of competent jurisdiction, subject to Section 16 below; or (b) interim injunctive or equitable relief from the arbitrator pursuant to the American Arbitration Association rules, in each case to prevent any violation of any agreement. Any arbitration proceeding brought under this Separation Agreement shall be conducted in Dallas, Texas. The arbitrator shall issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A judgment upon the award rendered by the arbitrator may be entered, enforced or appealed in any court having jurisdiction thereof. Any arbitration proceedings, decision, or award rendered hereunder, and the validity, effect, and interpretation of this arbitration provision, shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. | 6Arbitration
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The headings and subheadings in this Agreement are included solely for convenience and shall not affect the interpretation of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same agreement. | 26Counterparts
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Use the proceeds of the Borrowings for working capital and other general corporate purposes. | 92Use Of Proceeds
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No Seller Party nor any of their respective ERISA Affiliates sponsors, maintains, contributes to, or has within the immediately preceding five calendar years sponsored, maintained or contributed to, any Plans or Multiemployer Plans, the liability for which would reasonably be expected in the aggregate to result in a Material Adverse Effect. | 39Erisa
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The Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Guarantor and without notice to or further assent by the Guarantor, any demand for payment of any of the Obligations made by the Indenture Trustee may be rescinded and any of the Obligations continued, and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Indenture Trustee, and the Indenture and the other Transaction Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, in accordance with the terms thereof from time to time, and any collateral security, guarantee or right of offset at any time held by the Indenture Trustee for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. The Indenture Trustee shall not have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for the guarantee contained in this Section 2 or any property subject thereto. | 2Amendments
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Manager shall use commercially reasonable efforts to prevent any liens from being filed against the Facility which arise from any maintenance, repairs, alterations, improvements, renewals or replacements in or to the Facility. Manager shall not file any lien against the Facility. | 57Liens
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The Borrower and each of the Restricted Subsidiaries have obtained all material intellectual property that is necessary for the operation of their respective businesses as currently conducted and as proposed to be conducted, except where the failure to obtain any such rights could not reasonably be expected to have a Material Adverse Effect. | 53Intellectual Property
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Notwithstanding any other provision of this Agreement or the Plan, in the event of a Change in Control the unvested portion of the Option shall fully vest and become exercisable immediately prior to such Change in Control. | 17Change In Control
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In the event that the Executive breaches or threatens to breach any provisions of Section 5 or this Section 6, then the Company will suffer irreparable harm and monetary damages would be inadequate to compensate the Company. Accordingly, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of bond or other security, to seek injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively “ Benefits ”) derived or received by the Executive as a result of any transaction constituting a breach of any of the provisions of Sections 5 or 6, to the maximum extent permitted by law. | 37Enforcements
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THIS RESTATEMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS RESTATEMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. | 47Governing Laws
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Each of Holdings , Safari (solely to the extent on or after the Collateral and Guarantee Release Date) and the Borrower will, and will cause each Restricted Subsidiary to, comply with its Organizational Documents and all Requirements of Law with respect to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. | 19Compliance With Laws
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This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing signed by each party hereto. | 38Entire Agreements
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This agreement may be executed by each party hereto on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one agreement. Delivery of an executed counterpart by facsimile or electronic mail shall be equally effective as delivery of an original executed counterpart. Headings in this Agreement are for reference only and shall not form part of this Agreement. | 26Counterparts
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This is the entire agreement between the Employee and the Company with respect to the subject matter hereof and the Agreement supersedes any previous negotiations, agreements and understandings. The Employee acknowledges that he has not relied on any oral or written representations by the Company (or its counsel) or any of the other Released Parties to induce him to sign this Agreement, other than the terms of this Agreement. No modifications of this Agreement can be made except in writing signed by the Employee and the Company. | 38Entire Agreements
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Except to the extent fully satisfied or performed at or prior to Closing, all representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing. | 85Survival
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All notices and other communications made or given pursuant to this Agreement shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company, or in the case of notices delivered to the Company by you, addressed to the Administrator, care of the Company for the attention of its Secretary at its principal executive office or, in either case, if the receiving party consents in advance, transmitted and received via telecopy or via such other electronic transmission mechanism as may be available to the parties. Notwithstanding the foregoing, the Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this award of RSUs by electronic means or to request your consent to participate in the Plan or accept this award of RSUs by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company. | 65Notices
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The Company represents and warrants to the Seller that as of the date hereof and as of the Closing: (a) the Company is duly organized, validly existing and in good standing under the laws of the State of Minnesota and has all requisite limited liability company power and authority to own, lease and operate its properties and assets and to carry on its business as is now being conducted; (b) the Company has the full power and authority to enter into, execute and deliver this Agreement and to consummate the transactions contemplated hereby and any instruments or agreements required herein; and (c) this Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. | 98Warranties
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References to decisions by the Company will be made by the Board or the applicable Board committee. | 55Interpretations
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Except to the extent that another time period is expressly herein set forth, Tenant shall respond to any request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative (as defined below) for approvals or information in connection with Landlord’s Expansion Third Floor Work, within two (2) business days of Tenant’s receipt of such request. | 5Approvals
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Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided , however , the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. | 74Releases
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This Agreement, including the signature pages and Exhibits, and the other Transaction Documents constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof. | 38Entire Agreements
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This Amendment and all later documents, such as amendments, (a) may be executed by electronic signature, (b) may be executed and delivered in counterpart, and (c) may be delivered electronically or by facsimile (provided, if requested by Landlord, Tenant shall deliver a manually executed original of any of the foregoing to Landlord). Electronic records, electronic signatures, and facsimile signatures may be used in connection with the execution of this Amendment and such later documents, and the same shall be legal and binding and have the same full force and effect as if a paper original of this Amendment or such document had been signed using a handwritten signature. Landlord and Tenant (i) intend to be bound by electronic signatures and by documents and notices sent or delivered by facsimile, electronic mail, or other electronic means, (ii) are aware that the other party will rely on such signatures, and (iii) hereby waive any defenses to the enforcement of the terms of this Amendment or any later documents or notices based on the foregoing forms of signature or delivery. The foregoing does not prohibit the use of handwritten signatures or physical delivery. Notices under the Lease may be given as provided in the Lease or by facsimile or electronically to the address set forth below. | 65Notices
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Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, has full legal power to carry on its business as now conducted, is authorized to hold title to the Properties and is in good standing and duly qualified to conduct its business in Texas. | 66Organizations
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Each of the Borrower and its Subsidiaries has filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes (including any Taxes in the capacity of a withholding agent) required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books reserves to the extent required by GAAP or (b) to the extent that the failure to do so could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. | 87Taxes
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No delay or omission in the exercise of any right or remedy accruing to either party upon any breach by the other party under this Agreement shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter occurring. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. | 97Waivers
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Subtenant shall pay to Sublandlord, within two (2) business days from the later to occur of (i) Subtenant’s receipt of the Prime Landlord’s Consent (as hereinafter defined), and (ii) execution and delivery by Subtenant and Sublandlord of this Termination Agreement, the amount of $1,000,000.00, as consideration for Sublandlord’s permitting the early termination of the Sublease. Subtenant shall surrender and yield up the Sublease Premises in “broom clean” condition, free of all occupants and personal property and otherwise in substantially the same condition as exists on the Effective Date hereof. Notwithstanding anything to the contrary contained in the Sublease, the parties hereby agree that Sublandlord shall be solely responsible, at Sublandlord’s sole cost and expense, for the removal and restoration of the two (2) UPS Units and the rooftop condenser and associated refrigerant piping (collectively, the “ Required Removables ”) which is required pursuant to Exhibit C of the Consent, and that Subtenant shall have no further responsibility for the removal or reimbursement for the removal of the Required Removables. In the event the Prime Landlord brings a claim or demand as against Subtenant for any liabilities associated with the Required Removables, Sublandlord agrees to indemnify Subtenant and the Subtenant Released Parties from and against all claims, demands and liabilities associated with the same. Subtenant hereby agrees that all of the furniture listed on Exhibit A shall remain in the Subleased Premises upon the termination of the Sublease. On or before the Accelerated Expiration Date, Subtenant agrees to provide Sublandlord with an executed bill of sale in the form attached hereto as Exhibit A-1 for that furniture listed on Exhibit A . | 68Payments
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This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, and each counterpart shall be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Counterparts of this Amendment may be delivered by facsimile transmission or other electronic transmission, and such counterparts shall be as effective as if original counterparts had been physically delivered, and thereafter shall be binding on the parties hereto and their respective successors and assigns. | 26Counterparts
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The Borrower shall not create, incur, assume or otherwise cause or suffer to exist or become effective any Lien that secures obligations under any Indebtedness of the Borrower or any Guarantor (the “ Initial Lien ”) of any kind upon any of its property or assets, now owned or hereafter acquired except any Initial Lien if (i) the Obligations are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien secures any Subordinated Indebtedness) the obligations secured by such Initial Lien; provided that if any Aviation Assets are subject to such Initial Lien, such Initial Lien shall rank junior in priority to the Liens on the Aviation Assets securing the Obligations, which priority shall be reflected in a customary intercreditor agreement that is reasonably acceptable to the Administrative Agent and the Borrower or (ii) such Initial Lien is a Permitted Lien. | 57Liens
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The Company may terminate this Agreement in the event that Executive shall be in material breach of Sections 6, 8 or 9 of the Separation Agreement; provided, however, that Executive shall be given ten days’ prior notice and opportunity to cure. | 88Terminations
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This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement. This Amendment may be executed and delivered via telephonic or electronic facsimile or PDF transmission. | 26Counterparts
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During the Term, the China Co. shall pay the Executive a portion of the Base Salary as determined pursuant to Section 4(a) of the Employment Agreement. To the extent the China Co. does not make timely payment of its portion of the Base Salary, the China Co. agrees to reimburse the Company any such payment made by the Company on behalf of the China Co. as soon as reasonably practicable. In 2017, the China Co. shall be responsible for 20% of the Base Salary. Within the first 30 days of each following calendar year, China Co. shall true up the Company and/or the US Co. based on the amount of work actually performed by the Executive in the past calendar year and shall assess and re-allocate the payment responsibility of the Base Salary for the current year as necessary. | 11Base Salary
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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, email in “portable document format” (“.pdf”) form, or by other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. | 26Counterparts
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In the event of a Change in Control, as that term is defined under Section 11 of the Plan, prior to the end of any Restriction Period of the Award, to the extent the successor company (or a subsidiary or parent thereof) does not assume or provide a substitute for the Award on substantially the same terms and conditions, the Award shall become unrestricted and fully vested and the Units that become so vested shall be distributed pursuant to Section 3 on the regularly scheduled Payment Dates. To the extent the successor company (or a subsidiary or parent thereof) assumes or provides a substitute for the Award on substantially the same terms and conditions, the existing vesting schedule will continue to apply, provided , however , that, if within 24 months following the date of a Change in Control, the Employee’s employment with the Company is terminated without Cause or due to Normal Retirement, Early Retirement, Disability under the Company’s or one of its subsidiaries’ retirement or disability plans, or death, the Award shall become unrestricted and fully vested and distributed (x) pursuant to Section 3 on the regularly scheduled Payment Dates or (y) in the case of the termination of the Employee’s employment with the Company due to death, within 60 days following the date of the Employee’s death to the beneficiary designated by the Employee (or if the Employee has not designated a beneficiary, to the representative of the Employee’s estate). | 17Change In Control
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Each member of Carlson Capital jointly represents and warrants that, as of the date of this Agreement: (a) Carlson Capital, together with all of the Carlson Capital Affiliates, collectively Beneficially Own an aggregate of 2,287,521 Common Shares; and (b) Carlson Capital has not provided or agreed to provide, and will not provide, any compensation in cash or otherwise to any New Director, solely, in his capacity as a director or director nominee of the Company in connection with such New Director’s nomination and appointment to, or service on, the Board. | 76Representations
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This Agreement and the other Loan Documents are intended to take effect as sealed instruments and shall be construed in accordance with and governed by the laws of the State of New York, without regard to the conflict of laws principles thereof, except to the extent otherwise provided in the Loan Documents. | 47Governing Laws
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Your initial title will be Chief Medical & Scientific Officer, Senior Vice President, reporting to Arthur Higgins, President and CEO. This is a full-time position. While you render services to the Company, you will not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company. By signing this Agreement you confirm that you have provided the Company with all post-employment restrictive covenants between you and Insys, and that you and Depomed have determined based on independent legal advice that these contractual commitments do not prohibit you from performing your duties for Depomed provided you follow the protocol outlined in Paragraph 19 of the Indemnification Agreement. You confirm that you have no other agreements or legal obligations that would prohibit you from performing your duties for the Company. | 69Positions
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The Company understands and agrees that it will be solely responsible for all attorneys' fees and expenses incurred by the Fund with respect to the Litigation or otherwise pertaining to any and all matters related hereto. The Fund understands and acknowledges that the Settlement Shares. as converted by the Fund pursuant to this Agreement, the Purchase Agreement and the Note are hereby deemed to include, but not be limited to, the attorneys' fees and costs of the Fund with respect to the Litigation and any and all matters related thereto. | 25Costs
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The Company agrees to employ Executive, and Executive agrees to be employed by the Company, for a period of two (2) year(s) beginning on the Effective Date (the “ Term ”). | 89Terms
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In the course of its review and physical inspection of the Properties, the Blackstone Parties shall have the right to conduct non-invasive physical and environmental inspections and shall: (i) not unreasonably disturb the Tenants at the Properties; (ii) not unreasonably interfere with the operation and maintenance of the Properties; (iii) not damage any part of the Properties or any personal property of Steadfast, any Property Owner or any Tenant located thereon; (iv) not injure or otherwise cause bodily harm to the Property Owners, the Tenants, or their respective employees, agents, or invitees; (v) promptly pay when due the costs of all tests, investigations and examinations conducted with regard to the Properties; and (vi) not permit any liens arising by reason of any Blackstone Party’s actions in connection with this Agreement to attach to any Property. In the event a Phase II environmental study or other invasive testing is recommended by a Phase I study obtained by the Company or is otherwise requested by Blackstone, Blackstone shall consult with Steadfast regarding the same and, provided that Steadfast agrees to permit such testing in Steadfast’s sole discretion, the Parties shall cooperate to permit such recommended testing in a manner that does not unreasonably interfere with operations at the applicable Property. Blackstone shall and does hereby agree to indemnify, defend and hold the Steadfast Parties harmless from and against any and all claims, demands, suits, obligations, damages, losses, penalties, liabilities, costs and expenses (including but not limited to reasonable attorneys’ fees) caused by Blackstone or any Blackstone Party’s actions on or about the Properties in the exercise of the inspection rights granted pursuant to Section 7.1; provided, however, that the foregoing indemnity shall not apply to (i) anything caused by the gross negligence or willful misconduct of Steadfast, the Property Owners, or their respective Affiliates, or (ii) the mere discovery or the reporting or failure to report of a pre-existing condition. This Section 7.2 shall survive the Closings and/or any termination of this Agreement. | 50Indemnity
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Employee understands that he has been selected for employment by the Company on the basis of his personal qualifications, experience and skills. Employee, therefore, shall not assign all or any portion of Employee’s performance under this Agreement. Subject to the preceding two sentences, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, legal representatives, successors and assigns. Employee recognizes that the Company may assign this Agreement. | 7Assignments
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The Parties understand and agree that this Agreement constitutes the entire Agreement between the Parties concerning the scope of Executive’s separation from Company and the related release of claims, and that this Agreement supersedes any and all prior oral or written agreements and understandings between the Parties on such issues. No warranty, representation, condition, understanding or agreement of any kind with respect to the subject thereof shall be relied upon by the Parties unless incorporated herein. Notwithstanding any other provision contained herein, this Agreement may be pled as a thorough and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding that may be instituted, prosecuted or attempted in breach of the provisions contained herein. | 38Entire Agreements
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The Plan shall become effective on the date it is approved by the requisite vote of the Company’s Board, subject to approval by the Company’s shareholders. If the shareholders fail to approve the Plan within 12 months of its adoption by the Board, any Awards already made will be null and void and no additional Awards shall be made. | 33Effective Dates
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At any time or from time to time after the Original Issue Date, the parties hereto agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder. | 45Further Assurances
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The Borrower and the Guarantors will, and will cause their respective Subsidiaries to, permit the Agent and the Lenders, at the Borrower’s expense and upon reasonable prior notice, to visit and inspect any of the properties of the Borrower, each Guarantor or any of their respective Subsidiaries (subject to the rights of tenants and with the understanding that any visit to or inspection of any Real Estate that is not a Subject Property shall be undertaken for purposes of evaluating such Real Estate as it pertains to the Parent’s or the Borrower’s direct or indirect equity interest therein), to examine the books of account of the Borrower, each Guarantor and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss the affairs, finances and accounts of the Borrower, any Guarantor and their respective Subsidiaries with, and to be advised as to the same by, their respective officers, all at such reasonable times and intervals as the Agent or any Lender may reasonably request, provided that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall not be required to pay for such visits and inspections more often than once in any twelve (12) month period. In the event that the Agent or a Lender shall visit and inspect a property of a Subsidiary of Borrower which is not a Guarantor or an Unencumbered Property Subsidiary, such visit and inspection shall be made with a representative of Borrower (and Borrower agrees to use reasonable efforts to make such representative available). The Lenders shall use good faith efforts to coordinate such visits and inspections so as to minimize the interference with and disruption to the normal business operations of the Borrower, the Guarantors, their respective Subsidiaries and any tenants. | 14Books
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Subject to Section II.A.2(b) below, and as soon as administratively practicable following (but no later than thirty (30) days following) the Vesting Date, the Corporation shall issue Grantee one share of Stock for each vested Restricted Stock Unit. | 46General
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The parties shall use their best efforts to close the transaction contemplated by this Agreement on or before September __, 2017, however the transaction shall be made effective September 1, 2017. However, closing may be postponed if additional time is needed to obtain title opinions upon the Leases, or if any title defect is discovered during Buyer’s due diligence; provided however, closing shall not be postponed more than 30 days after September 1, 2017 without the consent of both parties. The closing shall take place at a location and on a date and at a time to be mutually agreed upon by the Parties. At closing Buyer shall tender the Purchase Price less any other adjustments of the Purchase Price specifically provided for herein, and Seller shall deliver the fully executed Assignment and Bill of Sale in the form attached hereto as Exhibit ‘C’ together with all files and records pertaining to the Leases, including but not limited to drilling data, electric logs, lease files, land files, well files, division order files, geophysical data, maps, regulatory files, title opinions and records drillers logs, reserve reports appraisals, evaluations, studies, or any other documents prepared for or in any way relating to the Leases, executed titles for vehicles which require a paper title and executed bills of sale for all vehicles, equipment and rolling stock which do not require a paper title, to Buyer at closing. | 18Closings
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The execution, delivery and performance of each of the Transaction Documents by the Company, and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the Certificate of Incorporation or the By-laws (or equivalent constitutive document) of the Company or any of its subsidiaries or (ii) violate or conflict with, or result in a breach of any provision of, 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 subsidiary is a party, except for those which would not reasonably be expected to have a Material Adverse Effect, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including U.S. federal and state securities laws and regulations) applicable to the Company or any subsidiary or by which any property or asset of the Company or any subsidiary is bound or affected except for those which could not reasonably be expected to have a Material Adverse Effect. Except those which could not reasonably be expected to have a Material Adverse Effect, neither the Company nor any subsidiary is in violation of any term of or in default under its constitutive documents. Except those which could not reasonably be expected to have a Material Adverse Effect, neither the Company nor any subsidiary is in violation of any term of or in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company or any subsidiary. The business of the Company and its subsidiaries is not being conducted, and shall not be conducted in violation of any law, ordinance, or regulation of any governmental entity, except for any violation which could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required under the Securities Act and any applicable state securities laws, neither the Company nor any of its subsidiaries is required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under or contemplated by this Agreement or the other Transaction Documents in accordance with the terms hereof or thereof. Neither the execution and delivery by the Company of the Transaction Documents, nor the consummation by the Company of the transactions contemplated hereby or thereby, will require any notice, consent or waiver under any contract or instrument to which the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of their assets is subject, except for any notice, consent or waiver the absence of which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and would not adversely affect the consummation of the transactions contemplated hereby or thereby. All consents, authorizations, orders, filings and registrations which the Company or any of its subsidiaries is required to obtain pursuant to the preceding two sentences have been or will be obtained or effected on or prior to the Closing. | 61No Conflicts
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This Amendment shall be construed in accordance with and governed by the law of the State of New York. Section 9.10 of the Credit Agreement is incorporated herein mutatis mutandis . | 47Governing Laws
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All of the terms and provisions of the Credit Agreement, the Foresight Energy Guaranty and the other Finance Documents are and shall remain in full force and effect and are hereby ratified and confirmed. The execution and delivery of this Eighth Amendment shall not, except as expressly provided herein, constitute a waiver or amendment of (a) any provision of any Finance Document or (b) any right, power or remedy of Administrative Agent, Hermes Agent or Lender under any Finance Document, including rights, powers and remedies arising out of or relating to any existing Defaults or Events of Default, other than as expressly set forth herein. No course of dealing and no failure or delay by Administrative Agent, Hermes Agent or Lender in exercising any right, power or remedy under any Finance Document shall operate as a waiver thereof or otherwise prejudice the rights, powers or remedies of Administrative Agent, Hermes Agent or Lender. From and after the date hereof, (i) all references to the “Credit Agreement” contained in the Finance Documents shall be deemed to refer to the Credit Agreement (as amended hereby and as the same may be further amended, restated, amended and restated, replaced, supplemented or modified from time to time) and (ii) all references to the “Foresight Guaranty” contained in the Finance Documents shall be deemed to refer to the Foresight Energy Guaranty (as amended hereby and as the same may be further amended, restated, amended and restated, replaced, supplemented or modified from time to time). | 63No Waivers
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No Event of Default or Investor Termination Event exists at the time of, or would result from, such funding, issuance or grant. | 62No Defaults
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This Agreement shall be construed in accordance with and governed by the law of the State of New York, except as otherwise required by mandatory provisions of law and except to the extent that remedies provided by the laws of any jurisdiction other than the State of New York are governed by the laws of such jurisdiction. | 47Governing Laws
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The FVE Parties shall reasonably cooperate with the SNH Parties in connection with obtaining any Required Licenses, the Lender Consents and any other third party consent requested by an SNH Party. | 24Cooperation
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No waiver by either party of any breach by the other party of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of any other provision or condition at the time or at any prior or subsequent time. This Agreement and the provisions contained in it shall not be construed or interpreted for or against either party because that party drafted or caused that party’s legal representative to draft any of its provisions. | 97Waivers
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Executive agrees to abide by the Company’s Employee Proprietary Information and Inventions Agreement (the “ Non-Disclosure Agreement ”), which Executive has signed and is incorporated herein by reference. | 20Confidentiality
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Prior to the payment of the Appreciation Value in connection with the exercise of the SARs, the Grantee must make arrangements satisfactory to the Company to pay or provide for any applicable federal, state, and local withholding obligations of the Company. | 99Withholdings
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During the remainder of the Employment Term the Executive shall continue to serve in his current position or such other position as the Corporation and the Bank shall determine as appropriate. | 69Positions
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Each Borrower shall promptly, and in any event within five (5) Business Days after any Credit Party or any officer of any Credit Party obtains knowledge thereof, notify Lender in writing of (i) any pending litigation, suit, investigation, arbitration, formal dispute resolution proceeding or administrative proceeding brought against or initiated by any Credit Party or otherwise affecting or involving or relating to any Credit Party or any of its property or assets to the extent (A) the amount in controversy exceeds Ten Thousand Dollars ($10,000), or (B) to the extent any of the foregoing seeks injunctive relief, (ii) any Default or Event of Default, which notice shall specify the nature and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, (iii) any other development, event, fact, circumstance or condition that would reasonably be expected to have a Material Adverse Effect, in each case describing the nature and status thereof and the action proposed to be taken with respect thereto, (iv) any notice received by Borrower from any payor of an Account to the effect that such payor has one or more claim against any Credit Party involving aggregate amounts in excess of Ten Thousand Dollars ($10,000), (v) any matter(s) affecting the value, enforceability or collectability of any of the Collateral, including without limitation, claims or disputes in the amount of Ten Thousand Dollars ($10,000) or more, singly or in the aggregate, in existence at any one time, (vi) any notice given by Borrower to any other lender of Borrower and shall furnish to Lender a copy of such notice, (vii) receipt of any notice or request from any Governmental Authority or governmental payor regarding any liability or claim of liability outside the ordinary course of business, (viii) termination of any executive manager of any facility owned, operated or leased by any Credit Party, and/or (ix) if any Account becomes evidenced or secured by an Instrument or Chattel Paper. | 65Notices
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This Trademark Security Agreement shall terminate upon termination of the Security Agreement. | 88Terminations
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You understand and agree to hold the provisions of this Agreement in strictest confidence as a condition of the benefits, and you agree not to publicize or disclose the terms of this Agreement in any manner whatsoever; provided, however, that you may disclose this Agreement to: (a) your spouse or domestic partner; (b) your attorney, accountant, or financial advisor; or (c) insofar as disclosure may be necessary to enforce its terms or as required by law. | 20Confidentiality
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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 the Purchasers, severally and not jointly, agree to purchase, an aggregate of up to $7,000,000 of Shares. Each Purchaser shall deliver to the account designated by the Company, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser. The Company and each Purchaser shall deliver the items set forth in Section 2.2 at the closing (“ Closing ”). Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares pursuant to Section 2.2(a) shall occur via “Delivery Versus Payment” (“ DVP ”) ( i.e. , on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). | 18Closings
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This 2017-1 Servicing Supplement may be executed in any number of counterparts, each of which so executed and delivered shall be deemed to be an original, but all of which counterparts shall together constitute but one and the same instrument. | 26Counterparts
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