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If this letter correctly states the agreement and understanding we have reached, please indicate your acceptance by countersigning the enclosed copy and returning it to me by the 45th day of receipt, or within three days after the Termination Date, which is later. You may not sign the Agreement before the Termination Date. You may revoke this Agreement for a period of seven (7) days after signing it. In order to revoke the Agreement, you must submit a written notice of revocation to Seth Tasker located at [email protected]. This written notice may be sent by mail, overnight mail, email or hand-delivery but must be received by no later than the close of business on the seventh day. The Agreement will not become effective or enforceable, and no payments will be made, until this revocation period has expired (“Effective Date”) without being exercised. | 33Effective Dates
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The Company shall have the authority to withhold or to cause to be withheld applicable taxes from any payments made under or in accordance with the Plan to the extent required by law. In addition, the Company and the Employer shall have the right to delay or permanently withhold any benefit under this Plan to the extent that the payment of such benefit would constitute a violation of Section 409A of the Code. | 86Tax Withholdings
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As of the Closing Date, Disclosure Schedule 7.16 lists all insurance of any nature maintained for current occurrences by Borrowers, as well as a summary of the terms of such insurance. Each Corporate Credit Party shall deliver to Lender certified copies and endorsements to all of its (a) “All Risk” and business interruption insurance policies naming Lender as lender loss payee, and (b) general liability and other liability policies naming Lender as an additional insured. All policies of insurance on real and personal property will contain an endorsement, in form and substance acceptable to Lender, showing loss payable to Lender (Form 438 BFU or equivalent) and extra expense and business interruption endorsements. Such endorsement, or an independent instrument furnished to Lender, will provide that the insurance companies will give Lender at least thirty (30) days prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of any Corporate Credit Party or any other Person shall affect the right of Lender to recover under such policy or policies of insurance in case of loss or damage. Each Borrower shall direct all present and future insurers under its “All Risk” policies of insurance to pay all proceeds payable thereunder directly to Lender. If any insurance proceeds are paid by check, draft or other instrument payable to any Corporate Credit Party and Lender jointly, Lender may endorse each Corporate Credit Party’s name thereon and do such other things as Lender may deem advisable to reduce the same to cash. Lender reserves the right at any time, upon review of any Corporate Credit Party’s risk profile, to require additional forms and limits of insurance. Each Corporate Credit Party shall, on each anniversary of the Closing Date and from time to time at Lender’s request, deliver to Lender a report by a reputable insurance broker, satisfactory to Lender, with respect to such Person’s insurance policies. | 51Insurances
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The Company shall indemnify, and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Maryland law in effect on the Effective Date and as amended from time to time; provided, however, that no change in Maryland law shall have the effect of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on the Effective Date. The rights of Indemnitee provided in this Section 3 shall include, without limitation, the rights set forth in the other sections of this Agreement, including any additional indemnification permitted by Section 2-418(g) of the Maryland General Corporation Law (the “ MGCL ”). | 46General
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To not sell, assign, or convey any right, title, or interest whatsoever in or to the Property, or create or permit to attach any lien, security interest, easement, encumbrance, charge, or condition affecting the Property (other than the Permitted Exceptions). | 57Liens
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No failure by any party hereto to exercise, and no delay in exercising, any right under the Management Agreement or this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude any other or further exercise thereof or the exercise of any other right. | 63No Waivers
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SVP, Global Customer Services, Chief Executive Officer. By signing this letter agreement, you confirm to the Company that you have no contractual commitments or other legal obligations that would prohibit you from performing your duties for the Company. | 69Positions
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Buyer has the requisite corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Buyer, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite corporate action. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). | 36Enforceability
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Restricted Shares are nonvested and forfeitable when granted under the Plan. Unless otherwise determined by the Board, Restricted Shares shall become vested and nonforfeitable on the earlier of (a) the day immediately prior to the first Annual Meeting that occurs after the grant date or (b) the first anniversary of the grant date, so long as the director’s service with the Company has not earlier terminated. If the director’s service with the Company terminates due to death or total disability, the Restricted Shares that have not previously become vested and nonforfeitable shall become vested and nonforfeitable as of the date that the director’s service with the Company so terminates. If the director’s service with the Company terminates for any reason other than death or total disability, then, unless the Board determines otherwise, all Restricted Shares that are not then vested and nonforfeitable, after giving effect to the vesting provision set forth above, will be immediately forfeited by the director and transferred to the Company upon such termination at no cost to the Company. | 95Vesting
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Subject to Section 9(e) hereof, any dispute, controversy, or claim arising out of or relating to this Agreement or breach thereof, or arising out of or relating in any way to the employment of Executive or the termination thereof, shall be submitted to arbitration in accordance with the . The arbitration proceedings shall be held in the either Butler County, Kansas, or Sedgwick County, Kansas. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In reaching her decision, the arbitrator shall have no authority to ignore, change, modify, add to or delete from any provision of this Agreement, but instead is limited to interpreting this Agreement. The parties specifically acknowledge that the Arbitrator must award fees, including attorneys’ fees, and costs of the arbitration to the prevailing party in any such proceeding. | 6Arbitration
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TESARO shall (a) comply, in all material respects, with all Applicable Laws applicable to its operations and the use or sale of the Product and the finished formulated product containing the Product, (b) be responsible for obtaining and maintaining any establishment licenses or permits required by the FDA or other Regulatory Authorities or by Applicable Law that pertains to the handling, storage, and distribution of the Product after TESARO has obtained title to the Product. | 4Applicable Laws
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Subject to the appointment and acceptance of a successor Administrative Agent as provided in this Section 8.07 , the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in Tulsa, Oklahoma, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. | 84Successors
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If the Committee determines, in its sole discretion, that you have, at any time, willfully engaged in conduct that is harmful to the Company (or any Related Company), the Committee may declare that all or a portion of this Restricted Stock award is immediately forfeited. If the Committee determines, in its sole discretion, that you have willfully engaged in conduct that is harmful to the Company (or any Related Company), you shall repay to the Company all or any vested shares of Company Stock owned by you as a result of this Award Agreement or all or any of the amount realized as a result of the sale of Company Stock awarded to you under this Award Agreement, to the extent required by the Committee; so long as you have been notified in writing of the Committee’s determination within one year of the vesting of such Company Stock under this Award Agreement. Repayment or forfeiture required under this Section shall be enforced by the Board or its delegate, in the manner the Board or its delegate determines to be appropriate. Your acceptance of the Restricted Stock reflected in this Award Agreement constitutes acceptance of the forfeiture and repayment provisions of this Section. Notwithstanding the foregoing, in the event that a Change in Control of the Company has occurred subsequent to the date of this Award Agreement, a determination that you have willfully engaged in conduct that is harmful to the Company (or any Related Company) must be made by a Committee the majority of which is made up of members who were serving as independent directors of the Company during the three-month period immediately preceding the Change of Control of the Company. Further, notwithstanding anything to the contrary in this Agreement, no repayment or clawback shall be applicable to actions that occurred either prior or subsequent to your term as a non-employee Director. | 44Forfeitures
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The execution and delivery of this Agreement, and the consummation by NCIF of the transactions contemplated hereby, have been duly and validly approved in accordance with all requirements and procedures applicable to NCIF, and no other proceedings on the part of NCIF are necessary to approve this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by NCIF, and (assuming the due authorization, execution and delivery of this Agreement by the other parties hereto) this Agreement constitutes a valid and binding obligation of NCIF, enforceable against NCIF in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of law or a court of equity, and by bankruptcy, insolvency and similar Laws affecting creditors’ rights and remedies generally. | 10Authorizations
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This Amendment and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of laws (other than Sections 5-1401 and 5 ‑1402 of the New York General Obligations Law which shall be applicable). | 47Governing Laws
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This Agreement and any dispute arising from the performance or breach hereof shall be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to any choice of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any subject matter hereof. | 47Governing Laws
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The Performance Shares granted hereby are subject to the Plan. If a conflict exists between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. Notwithstanding the preceding sentence, in the event of any direct conflict between Section 2.B.(iii). of this Agreement and either the Plan or the Employment Agreement, the terms of this Agreement shall govern and prevail. | 55Interpretations
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There is no Action pending or threatened against the Seller or any of its officers or directors in each case that (a) relates to the Seller, its assets or its business, including without limitation, the Shares, or (b) as of the date hereof, seeks, or could reasonably be expected, to prohibit or restrain the ability of the Seller to enter into this Agreement or to timely consummate any of the transactions contemplated hereby, and there is no reasonable basis for any such Action. There are no judgments, decrees, agreements, memoranda of understanding or orders of any Governmental Authority outstanding against the Seller. | 58Litigations
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(the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “ Assignor ”) and the Assignee identified in item 2 below (the “ Assignee ”). Capitalized terms used but not defined herein will have the meanings given to them in the Credit Agreement identified below (as amended, supplemented, restated or otherwise modified as of the Effective Date, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. | 7Assignments
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All obligations of the Company under the Plan and this Agreement, with respect to the Performance Awards, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. | 84Successors
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The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rale of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. | 23Construction
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Unless earlier terminated pursuant to any provision of this Option Agreement, this Option shall expire 3 years from date of grant (the “Expiration Date”). This Option shall not be exercisable on or after the Expiration Date. | 89Terms
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Subject to earlier termination of Executive’s employment pursuant to Section 5, this Agreement shall continue until the third anniversary of the Effective Date (the “ Initial Term ”). On completion of the Initial Term, this Agreement will automatically renew for subsequent one (1) year terms unless either party provides sixty (60) days’ advance written notice to the other that Company or Executive, as applicable, does not wish to renew the Agreement for a subsequent one (1) year term (the Initial Term and any subsequent renewal term shall be collectively referred to as the “ Term ”). | 89Terms
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The RSUs shall vest according to the schedule set forth on Exhibit A. Notwithstanding the foregoing, upon the Participant's death, Disability, or Retirement, a prorated number of RSUs shall vest, determined by multiplying the RSUs by a fraction, the numerator of which shall be the number of full calendar months elapsed after the Grant Date or, if ratable vesting, since the last vesting date, and the denominator shall be the number of full calendar months remaining in the vesting schedule. If the Participant’s employment is terminated for any reason other than death, Disability or Retirement, then the unvested RSUs will be forfeited and reconveyed to the Company without further consideration or any act or action by the Participant. The RSUs may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated until the RSUs vest. | 95Vesting
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During the Employment Term, the Company shall pay to the Executive a salary of $470,000.00 per annum, payable consistent with the Company’s standard payroll practices then in effect (“Base Salary”). Such Base Salary shall be reviewed by the Compensation Committee of Advance’s Board of Directors (hereinafter the “Compensation Committee”) at least annually, with any changes taking into account, among other factors, Company and individual performance. | 11Base Salary
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Each Option granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for each Participant. Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. All Options granted under the Plan shall be nonqualified stock options. | 46General
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Any and all notices or other communications or deliveries to be provided by the Holder hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other e-mail address or mailing address as the Company may specify for such purposes on its signature page hereto or otherwise by notice to the Holder delivered in accordance with this Section 7(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to the Holder at the address of the Holder address set forth above, or such other e-mail address or mailing address as the Company may specify for such purposes on its signature page hereto or otherwise by notice to the Holder delivered in accordance with this Section 7(a). Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (ii) upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail, or other written acknowledgement), if sent by e-mail. | 65Notices
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On the Effective Date, immediately after giving effect to the consummation of the Transactions, (a) the sum of the debt (including contingent liabilities) of the Borrower and its Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and its Subsidiaries, on a consolidated basis, (b) the capital of the Borrower and its Subsidiaries, on consolidated basis, is not unreasonably small in relation to their business as contemplated on the Effective Date, (c) the Borrower and its Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they will incur, debts including current obligations, beyond their ability to pay such debts as they become due (whether at maturity or otherwise), and (d) the Borrower and its Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under applicable law relating to fraudulent transfer and conveyance. For purposes of this Section 3.14, the amount of any contingent liability at any time shall be computed as the amount that, in the light of all of the facts and circumstances existing at such time, represents the amount that could reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5). | 80Solvency
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The Administrative Agent (or, if required by the relevant Loan Document or other written agreement relating to any document, the applicable Arranger, Lender or Affiliate thereof) shall have received all fees and other amounts due and payable by any Loan Party on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel), in each case, required to be reimbursed or paid by any Loan Party under any Loan Document or any other written agreement relating to any Loan Document entered into by the Borrower and the Administrative Agent (or by the applicable Arranger, Lender or Affiliate thereof, as the case may be). In addition, the U.S. Borrower shall have paid to the Administrative Agent, for the account of the Administrative Agent, the Issuing Bank and the Lenders, all unpaid fees, interest and other amounts that have accrued under the Existing Credit Agreement prior to the Restatement Effective Date. | 42Fees
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THE PARTIES STIPULATE AND AGREE THAT THE EXCLUSIVE VENUE OF ANY SUCH ARBITRATION PROCEEDING (AND OF ANY OTHER PROCEEDING, INCLUDING ANY COURT PROCEEDING, UNDER THIS AGREEMENT) SHALL BE ALLEGHENY COUNTY, PENNSYLVANIA (THE “ AGREED VENUE ”). | 94Venues
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This Agreement and the Notes have been delivered at Troy, Michigan, and shall be governed by and construed and enforced in accordance with the laws of the State of Michigan. 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 shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Borrower and Bank hereby irrevocably submit to the non-exclusive jurisdiction of any United States Federal Court sitting in the Eastern District of Michigan or Michigan state court sitting in Oakland County, Michigan in any action or proceeding arising out of or relating to this Agreement or any of the Loan Documents and Borrower and Bank hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in any such United States Federal Court or Michigan state court. Borrower irrevocably consents to the service of any and all process in any such action or proceeding brought in any such court by the delivery of copies of such process to Borrower at its respective address specified herein or by certified mail directed to such address or such other address as may be designated by Borrower in a notice to the other parties that complies as to delivery with the terms of Section 11.4. Nothing in this Section shall affect the right of Bank to serve process in any other manner permitted by law or limit the right of Bank to bring any such action or proceeding against any Loan Party or any of its or their property in the courts with subject matter jurisdiction of any other jurisdiction. Borrower hereby irrevocably waives any objection to the laying of venue of any such suit or proceeding in the above described courts. | 21Consent To Jurisdiction
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You acknowledge and agree that certain payments and benefits described herein are in excess of the total payments and benefits that you would otherwise be eligible to receive upon your termination of employment, absent this Agreement. In order to induce the Company to enter into this Agreement to provide you these additional benefits, you will (a) sign the General Release as set forth as Appendix A hereto, within 21 days of receipt, (b) not revoke such General Release within the 7-day period as set forth in the General Release and (c) on the Separation Date or your earlier termination of employment, or as soon as practicable thereafter, sign the Reaffirmation Page as set forth as Appendix B hereto and not timely revoke the Reaffirmation Page within the 7-day period as set forth in the General Release. In addition to your execution and non-revocation of the General Release and Reaffirmation Page, as applicable, your continuing entitlement to the payments and benefits described in this Agreement is subject to your continuing compliance with the provisions of Sections 7, 9 and 10 of this Agreement. You hereby acknowledge that, except as otherwise specifically provided in this Agreement, you will not be entitled to any cash or non-cash consideration or other benefits of any kind from the Company, including any payments or benefits to which you may have been entitled under any of the Company’s equity compensation plans and related award agreements or any other agreement with the Company. | 74Releases
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The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of any optional prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 10:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 10:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.07 , then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07 . Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02 , except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.11 and shall be made in the manner specified in Section 2.08(c) . | 65Notices
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The Company will pay the Employee an annual base salary of $260,000.00 (“ Base Salary ”). All payments of Base Salary will be made in installments according to the Company’s regular payroll practice, prorated monthly or weekly when appropriate, and subject to any withholdings that are required by law. | 11Base Salary
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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 no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted 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 subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Arrangers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. | 84Successors
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This Agreement shall become effective on the date hereof. Any amendment to this Agreement shall be written and signed by both parties to this Agreement. | 2Amendments
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Maker and all sureties, endorsers, guarantors and any other party now or hereafter liable for the payment of this Note in whole or in part, hereby severally (i) waive demand, presentment for payment, notice of dishonor and of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notice, filing of suit and diligence in collecting this Note or enforcing any of the security herefor; (ii) agree to any substitution, subordination, exchange or release of any such security or the release of any party primarily or secondarily liable hereon; (iii) agree that the holder hereof shall not be required first to institute suit or exhaust its remedies hereon against Maker or others liable or to become liable hereon or to enforce its rights against them or any security herefor; (iv) consent to any extension or postponement of time of payment of this Note for any period or periods of time and to any partial payments, before or after maturity, and to any other indulgences with respect hereto, without notice thereof to any of them; and (v) submit (and waive all rights to object) to personal jurisdiction in the State of Texas, and venue in Harris County, Texas, for the enforcement of any and all obligations hereunder. | 97Waivers
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Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided , however , that (a) no amendment shall adversely affect the rights of the Grantee under this Agreement without the Grantee’s written consent, and (b) the Grantee’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code or Section 10D of the Exchange Act, if applicable. | 2Amendments
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Sections 7, 8, 10(d), 10(e), 11 and 12 (including Section 12(j) and 12(l)), together with any other provisions of this Agreement which, by their nature, require full or partial performance following the termination of this Agreement or Executive’s employment, shall survive and continue in full force and effect in accordance with their terms notwithstanding the termination of this Agreement and Executive’s employment for any reason. | 85Survival
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The Company will use the proceeds from the sale of the Common Stock hereunder for working capital and other general corporate purposes or, if different, in a manner consistent with the application thereof described in the Registration Statement. The Company will not, to its knowledge, directly or indirectly, use the proceeds of the transaction, or lend, contribute, facilitate or otherwise make available such proceeds to any person (i) to fund, either directly or indirectly, any activities or business of or with any Person, that is identified on the list of Specially Designated Nationals and Blocker Persons maintained by OFAC, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or Sanctions Programs, or (ii) in any other manner that will result in a violation of Sanctions Laws or the FCPA. | 92Use Of Proceeds
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This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither party may assign any of its rights or delegate any of its obligations under this Agreement , in whole or in part, except with the other party’s prior written consent. If a party desires to assign this Agreement, it shall give written notice to the other party with sufficient detail to enable the other party to properly consider the matter, and any assignee reasonably acceptable to the other party shall be required to covenant in writing with such party to be bound by the terms of this Agreement. In the event a party consents to the delegation of any of the other party’s obligations under this Agreement, the delegating party shall remain responsible for any breach of this Agreement by any such delegee. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without the other party’s consent, but subject to prior written notice, to any of its Affiliates or to a successor to or purchaser of all or substantially all of the business or assets of the assigning party or the assigning party’s business unit responsible for performance under this Agreement . Any purported assignment in violation of this Section 14.5 shall be null and void and of no effect. | 7Assignments
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Treasury has no liability for any amounts that any broker, finder or investment banker is entitled to for any financial advisory, brokerage, finder’s or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of the Company or any Company Subsidiary. | 15Brokers
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To the extent any provision of this Second Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Second Amendment in any jurisdiction. | 79Severability
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The Company hereby agrees to employ the Executive, and the Executive hereby accepts such employment with the Company, for the purposes and upon the terms and conditions contained in this Agreement. The term of this Agreement is effective for a period commencing on the Effective Date and continuing until terminated as provided in Section 8 (the “ Employment Period ”). | 35Employment
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The Operator shall not create, suffer or permit to exist, and shall promptly remove and discharge, any lien, charge, security interest or other encumbrance against any property of the Company or any monies due or to become due for any work performed or materials furnished to the Company in connection with this Operating Agreement other than liens for amounts not yet due or amounts being contested in good faith by the Operator or Operator Personnel; provided that it is expressly understood that the Operator shall not be responsible for removing or discharging any such lien, charge, security interest or other encumbrance associated with any work performed or materials furnished pursuant to agreements entered into by the Company or by the Operator (or Operator Personnel) directly with third parties. | 57Liens
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Notwithstanding anything to the contrary in the Company’s 2010 Management Incentive Plan, if Executive’s employment is terminated (i) in connection with a Change in Control or (ii) within one year after a Change in Control (A) by Executive for Good Reason, or (B) by the Company without Cause, then Executive’s compensation and benefits upon termination shall be governed by this Section 5.6 and Section 5.7 instead of the provisions of Section 5.2 above. In such event, Executive shall be entitled solely to the following: (1) Base Salary through the date of termination, paid on the Company’s’ normal payroll payment date; (2) an amount equal to the sum of her Base Salary and her target annual bonus for the year of termination, payable in a lump sum on the First Payroll Date; (3) an additional amount equal to Executive’s target annual bonus for such year pro rated for the number of full months during the bonus year prior to such termination of employment, payable in a lump sum on the First Payroll Date; (4) if Executive is entitled (and timely and properly elects) to continue her coverage under the Company’s group health plans pursuant to COBRA, payment by (or reimbursement from) the Company of the same portion of the premium for such coverage as the Company was paying for Executive’s coverage under such plans as of Executive’s date of termination for a period of one year after the date of termination or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that the Company may unilaterally amend clause (4) of this sentence or eliminate the benefit provided thereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or its affiliates (or successors), including, without limitation, under Section 4980D of the Code; and (5) any accrued and unpaid vacation pay or other benefits which may be owing to Executive in accordance with the Company’s policies. | 68Payments
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The captions or headings in this letter agreement are for convenience and reference only, and in no way define, describe, extend or limit the scope or intent of this letter agreement. | 48Headings
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Pledgor hereby agrees to indemnify Lender and its directors, officers, employees and agents from, and hold each of them harmless against, any and all actual losses, liabilities, claims, damages or expenses actually incurred by any of them (excluding special, consequential or punitive damages except to the extent same are imposed on, incurred by or asserted against Lender or its directors, officers, employees and agents in connection with any investigative, administrative or judicial proceeding commenced or threatened by any other Person not an Affiliate of Lender against Lender or its directors, officers, employees and agents) arising out of or by reason of any claim of any Person (1) relating to or arising out of the acts or omissions of Pledgor under this Agreement or the Relevant Documents (but excluding any such losses, liabilities, claims, damages or expenses incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified), or (2) resulting from the ownership of or lien on any Collateral, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation or litigation or other proceedings (but excluding any such losses, liabilities, claims, damages or expenses incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified). | 49Indemnifications
|
This Agreement may be terminated by any Purchaser, as to Purchaser's obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before the Termination Date; provided , however , that such termination will not affect the right of any party to sue for any breach by any other party (or parties), and such failure to close is not attributable to any actions or inactions of the Purchaser seeking to terminate its obligations under this Agreement. | 88Terminations
|
Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations. | 85Survival
|
The Section headings or titles in this Agreement are for convenience or reference only, and are not to be considered in construing the terms and provisions of this Agreement. | 48Headings
|
The waiver of any breach of any provision of this Award by either of the parties shall not constitute or operate as a waiver of any other breach of any provision of this Award, and any failure to enforce any provision of this Award in any particular instance shall not operate as a waiver of any existing or future rights, duties, or obligations arising out of this Award. | 97Waivers
|
If any of the provisions or subparts of this Section 10 shall be held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or subparts thereof shall nevertheless continue to be valid and enforceable according to their terms. Further, if any restriction contained in the provisions or subparts of this Section 10 is held to be overbroad or unreasonable as written, the parties agree that the applicable provision should be considered to be amended to reflect the maximum period, scope or geographical area deemed reasonable and enforceable by the court and enforced as amended. | 37Enforcements
|
Executive acknowledges that the covenants set forth in Sections 7 and 8 of this Agreement are just, reasonable, and necessary to protect the legitimate business interests of the Employer. Executive further acknowledges that if Executive breaches or threatens to breach any provision of Sections 7 and 8, the Employer’s remedies at law will be inadequate, and the Employer will be irreparably harmed. Accordingly, the Employer shall be entitled to an injunction, both preliminary and permanent, restraining Executive from such breach or threatened breach, such injunctive relief not to preclude the Employer from pursuing all available legal and equitable remedies, and being entitled to all reasonable attorney’s fees and costs incurred in connection with the breach, threatened breach, or any challenge to the enforceability of Sections 7 or 8. | 75Remedies
|
Notwithstanding anything to the contrary contained in Section 8.24 of the Lease (and not in limitation of any of the provisions thereof), the parties acknowledge and agree that (A) either party shall have the right to make or provide a public statement, press release or other public disclosure (i) which, in the opinion or such party’s counsel, is legally required, or (ii) which is made pursuant to any federal, state, local or foreign laws, or any rules or regulations of the United States Securities and Exchange Commission (the “ SEC ”) (or a securities regulatory body in any foreign country) or the rules of any domestic or foreign public stock exchange or stock quotation system; provided that, prior to making such disclosure, the disclosing party shall notify the other party of such required public disclosure and use reasonable efforts to coordinate with the other party with respect to the nature and content of such disclosure, and (B) Sublandlord and Subtenant and/or any of their respective affiliates, shall have the right to disclose this Sublease and the terms hereof in a Form 8-K to be filed with the SEC. | 31Disclosures
|
Form or acquire any subsidiary after the Closing Date. | 83Subsidiaries
|
The Borrower agrees to indemnify and hold harmless each Agent and each Lender and each of their respective affiliates, control persons, directors, officers, employees, attorneys and agents (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of counsel) which may be incurred by or asserted against any Indemnified Party, in each case in connection with or arising out of, or in connection with the preparation for or defense of, any investigation, litigation, or proceeding (i) related to this Agreement or any of the other documents delivered hereunder, the Loans or any transaction or proposed transaction (whether or not consummated) in which any proceeds of any Borrowing are applied or proposed to be applied, directly or indirectly, by the Borrower, whether or not such Indemnified Party is a party to such transaction, or (ii) related to the Borrower’s or Mondelēz’s consummation of any transaction or proposed transaction contemplated hereby (whether or not consummated) or entering into this Agreement, or to any actions or omissions of the Borrower or Mondelēz, any of their respective Subsidiaries or affiliates or any of its or their respective officers, directors, employees or agents in connection therewith, in each case whether or not an Indemnified Party is a party thereto and whether or not such investigation, litigation or proceeding is brought by Mondelēz or the Borrower or any other Person; provided , however , that neither the Borrower nor Mondelēz shall be required to indemnify an Indemnified Party from or against any portion of such claims, damages, losses, liabilities or expenses that is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnified Party. | 49Indemnifications
|
The Company may withhold from all amounts payable in connection with this letter agreement all federal, state or local taxes that are required to be withheld pursuant to any applicable laws and regulations. | 87Taxes
|
The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts. | 94Venues
|
In consideration of each Investor’s execution and delivery of the Transaction Documents and acquiring the Additional Notes thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each Investor and all of their affiliates, stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Additional Notes, or (iii) the status of such Investor as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents; provided, however, that no Investor will be entitled to indemnification hereunder for any Indemnified Liabilities resulting, as determined by a non-appealable judgement of a court of competent jurisdiction from (x) such Investor’s material breach of applicable laws, rules or regulations, including, without limitation, any breach by such Investor of any federal or state securities laws, rules or regulations with respect to short sales or other hedging activities or (y) such Investor’s material breach of any covenant, agreement or obligation of such Investor contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. | 49Indemnifications
|
Each individual executing this Agreement on behalf of a partnership, corporation, limited liability company or other entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity, and that this Agreement is binding on such entity. | 9Authority
|
Concurrent with the execution of the Original Agreement, you and the Company became parties to an Invention and Non-Disclosure Agreement attached as Attachment A-1 to this letter (the “Non-Disclosure Agreement”) and a Non-Competition and Non-Solicitation Agreement attached as Attachment A-2 to this letter (the “Non-Compete Agreement”, and together with the Non-Disclosure Agreement, the “Related Agreements”). The Related Agreements remain in full force and effect. | 20Confidentiality
|
Except as follows, neither Party may assign or transfer this License Agreement without the consent of the other Party. In the case of any such permitted assignment, the assignee assumes all responsibilities under this License Agreement. | 7Assignments
|
Except for the Required Consents identified on Schedule 3.4 (the copies of executed consents are attached as Exhibit C), there are no consents, authorizations or other orders of, or filing with, any Governmental or Regulatory Authority or acknowledgment by any third Person required for the valid execution, delivery and performance of this Agreement by Seller, assignment of all rights in the Acquired Assets, or consummation of the transactions contemplated hereby, except where the failure to obtain such consent, authorization, order or filing would not have a Material Adverse Effect. | 22Consents
|
Each of the Company and its Subsidiaries holds and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates, exemptions, approvals, clearances and orders of any Governmental Authority or self-regulatory body required for the conduct of its business (collectively, “ Permits ” ), except where the failure to have such P ermits would not, singly or in the aggregate, result in a Material Adverse Effect, and all such Permits are valid and in full force and effect; and neither the Company nor its S ubsidiaries have received notice of any revocation or modification of any such Permit or has reason to believe that any such Permit will not be renewed in the ordinary course; and the Company and its S ubsidiaries are in compliance in all material respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees. | 19Compliance With Laws
|
Effective as of July 1, 2017 Executive will be entitled to receive a base salary (“ Base Salary ”) of $300,000. Executive will receive a three percent (3%) annual salary increase in each subsequent year that this Agreement remains in effect (i.e., effective July 1, 2018, Executive’s salary will be $309,000, effective July 1, 2019, Executive’s salary will be $318,270). | 11Base Salary
|
If any provision of this Award Agreement is determined by a court of law to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable. | 79Severability
|
The Repurchase Documents and the Transactions shall be binding on and shall inure to the benefit of the Parties and their successors and permitted assigns. All of Seller’s representations, warranties, agreements and indemnities in the Repurchase Documents shall survive the termination of the Repurchase Documents and the payment in full of the Repurchase Obligations, and shall apply to and benefit all Indemnified Persons, Buyer and its successors and assigns, Assignees and Participants. No other Person shall be entitled to any benefit, right, power, remedy or claim under the Repurchase Documents. | 85Survival
|
Executive agrees that the existence and terms of the Agreement, including any compensation paid to Executive, and discussions with Sears (including any Sears Affiliate) regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by law or legal process; (b) to Executive’s spouse or domestic partner, or (c) to Executive’s financial/legal advisors, all of whom shall agree to keep such information confidential. | 20Confidentiality
|
This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. This Agreement may be amended or modified only with the written consent of Executive and the Board of Directors of Company. No oral waiver, amendment or modification will be effective under any circumstances whatsoever. | 38Entire Agreements
|
This Amendment shall be governed and construed in accordance with the laws of the State of Texas. | 47Governing Laws
|
No written reports, financial statements, certificates or other written information (taken as a whole) furnished by or on behalf of any Loan Party to any Arranger, the Administrative Agent or any Lender on or prior to the Closing Date in connection with the negotiation of this Agreement or any other Loan Document, included herein or therein or furnished hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to forecasts and projected financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed by it to be reasonable at the time so prepared and, if such projected financial information was furnished prior to the Closing Date, as of the Closing Date (it being understood and agreed that any such projected financial information may vary from actual results and that such variations may be material). | 31Disclosures
|
The Environmental Indemnity Agreement dated as of May 27, 2014 is modified as shown on the attached Exhibit B. | 2Amendments
|
Seller shall pay or cause to be paid and agrees to hold Producer harmless as to the payment of all excise, gross production, severance, sales, occupation and all other Taxes, charges or impositions of every kind and character required by statute or by order of Governmental Authorities and levied against or with respect to any Freshwater delivered by Seller under this Agreement. Producer shall not become liable for such Taxes, unless designated to remit those Taxes on behalf of Seller by any duly constituted jurisdictional agency having authority to impose such obligations on Producer, in which event the amount of such Taxes remitted on Seller’s behalf shall be (a) reimbursed by Seller upon receipt of invoice, with corresponding documentation from Producer setting forth such payments, or (b) deducted from amounts otherwise due to Seller under this Agreement. Seller shall pay or cause to be paid all Taxes, charges and assessments of every kind and character required by statute or by order of Governmental Authorities with respect to the Freshwater System or provision of the Services. No Party shall be responsible nor liable for any Taxes or other statutory charges levied or assessed against the facilities of any other Party, including ad valorem tax (however assessed), used for the purpose of carrying out the provisions of this Agreement or against the net worth or capital stock of such Party. | 87Taxes
|
EMPLOYEE agrees and acknowledges that she is entitled to no other severance payments or severance benefits and that no severance payments described in paragraph 4 herein will be made unless and until EMPLOYEE has fulfilled all of her obligations under this Agreement, including signing the Release contained herein and, upon the termination of her employment on April 14, 2017, signing the Second Release, attached hereto as Appendix A. Nothing herein can or is intended to affect EMPLOYEE’s pension rights or other retirement benefits or the amount (if any) of any pension payments or other retirement benefits to which she is entitled, or rights to indemnification pursuant to EMPLOYER’s or any of its affiliates’ organizational documents and/or director and officer liability policies covering her activities in connection with her employment with EMPLOYER. | 74Releases
|
Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be delivered in accordance with Section 11.3 of the Contribution Agreement. | 65Notices
|
To the extent legally required, the Code and ERISA shall govern the Plan and, if any provision hereof is in violation of any applicable requirement thereof, the Company reserves the right to retroactively amend the Plan to comply therewith. To the extent not governed by the Code and ERISA, the Plan shall be governed by the laws of the State of New York, without reference to rules relating to conflicts of law. | 47Governing Laws
|
The Parties shall agree and issue a joint press release, as set out in Exhibit 5, concerning the execution of this Agreement on or within fourteen (14) days of the Effective Date. The text of any other press releases, public announcements or PowerPoint presentations concerning this Agreement, the subject matter hereof, or the research, development or commercial results of Therapies hereunder (a “ Release ”) shall be addressed pursuant to Clauses 14.2 - 14.5, inclusive, as applicable. | 71Publicity
|
This Agreement may be executed in multiple counterpart copies, each of which shall be considered an original and all of which constitute one and the same instrument binding on all the parties, notwithstanding that all parties are not signatories to the same counterpart. | 26Counterparts
|
The Company, MLV and FBR each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby. | 96Waiver Of Jury Trials
|
Borrower shall have paid to Administrative Agent any and all expenses payable to Administrative Agent (including counsel of Administrative Agent) or Lenders pursuant to or in connection with this Amendment or as required by the Credit Agreement. | 41Expenses
|
On or before the tenth (10 th ) Business Day after each calendar month during which this Agreement is in effect, BP Pipelines shall submit an invoice (either in paper format or in such electronic format as is reasonably requested by the Partnership) to the Partnership for (i) the BP Administrative Fee installment due with respect to such month as well as any other compensation and reimbursable expenses due under Section 3.2(a)(ii) (“ Reimbursable Expenses ”) that have been incurred through the end of such month and not previously paid by the Partnership. The Partnership shall, within ten calendar days of receipt, pay such invoice, except for any Reimbursable Expenses therein being disputed in good faith by the Partnership. Any amounts that the Partnership has disputed in good faith and that are later determined by any court or other competent authority having jurisdiction, or by agreement of the Parties, to be owing from the Partnership shall be paid in full within ten calendar days of such determination or agreement, together with interest thereon at the Interest Rate (pro-rated for the number of days for which such payment is delinquent), from the date due under the original invoice until the date of payment. | 68Payments
|
Notwithstanding anything herein to the contrary, if Participant materially violates any provisions of Sections 5 and 6 of the Employment Agreement, whether before, on or after any settlement of an Award under the Plan, then Participant shall promptly pay to Company an amount equal to the aggregate Amount of Gain Realized by Participant on all Common Stock received pursuant to this Award Agreement (including upon exercise of this Stock Option) after a date commencing one (1) year before Participant’s Last Day of Employment; provided, however, to the extent the violation occurs before the exercise of this entire Stock Option, all rights to payments or benefits under the Plan and all unexercised portions of this Stock Option shall terminate, be forfeited and be incapable of vesting. Participant shall pay Company within sixty (60) business days after the date of any written demand by Company to Participant. | 75Remedies
|
This Agreement shall be binding upon and inure to the benefit of the Company and Grantee and their respective heirs, representatives, successors and permitted assigns. This Agreement shall no confer any rights or remedies upon any person other than the Company and Grantee and their respective heirs, representatives, successors and permitted assigns. | 13Binding Effects
|
No Credit Party shall, nor shall it permit any of its Subsidiaries to use the proceeds of the Advances made on the Effective Date for any purposes other than (a) to pay a portion of the consideration in respect of the Augusta Drop Down, (b) to make the Repayment, (c) to pay fees and expenses incurred in connection with this Agreement, the Augusta Drop Down, the Revolving Loan Documents and the other transactions to be consummated on the Effective Date and (d) for general partnership purposes, including to make Restricted Payments permitted by Section 6.9. No Credit Party shall, nor shall it permit any of its Subsidiaries to use the proceeds of the Advances made on the Restatement Date for any purposes other than (a) to prepay any outstanding Refinanced Advances (as defined in the Amendment and Restatement Agreement), together with accrued and unpaid interest thereon to the Restatement Date, (b) to pay fees and expenses incurred in connection with this Agreement, the Amendment and Restatement Agreement and the other transactions to be consummated on the Restatement Date and (c) for general partnership purposes, including to make Restricted Payments permitted by Section 6.9. The permitted use of proceeds for any Advances constituting Incremental Advances shall be set forth in the applicable Incremental Agreement. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, use any part of the proceeds of Advances for any purpose which violates, or is inconsistent with, Regulations T, U, or X. | 92Use Of Proceeds
|
The indemnity by Tenant, as set forth in Section 10.1 of this Lease, as modified by Section 29.39 of this Lease, shall also apply with respect to any and all costs, losses, damages, injuries and liabilities related in any way to any act or omission of Tenant or the Project Manager, or anyone directly or indirectly employed by any of them, or in connection with Tenant’s non-payment of any amount arising out of the Tenant Improvements and/or Tenant’s disapproval of all or any portion of any request for payment. | 50Indemnity
|
This Agreement may be amended by the Committee at any time based on its determination that the amendment is necessary or advisable in light of any addition to, or change in, the Code or regulations issued thereunder or any federal or state securities law or other law or regulation, or the Plan, or based on any discretionary authority of the Committee under the Plan. Unless necessary or advisable due to a change in law, any amendment to this Agreement which has a material adverse effect on the interest of Grantee under this Agreement shall be adopted only with the consent of Grantee. | 2Amendments
|
No waiver of any provision or consent to any action shall constitute a waiver of any other provision or consent to any other action, whether similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested. | 63No Waivers
|
This Agreement shall terminate and the term and conditions set forth herein shall be of no further force or effect (i) upon mutual agreement in writing by the Company and the Seller or (ii) February 15, 2017, provided the Closing has not occurred by such date. | 88Terminations
|
This Agreement shall become effective upon the execution of this Agreement by duly authorized representatives of all Parties. | 34Effectiveness
|
Until such time as each Non-Assignable Contract can be assigned to Buyer, and then during the remaining term of each Non-Assignable Contract, Seller will make the benefit of such Non-Assignable Contract available to Buyer so long as Buyer fully cooperates with Seller and reimburses Seller for all payments made by Seller in connection therewith. In addition, during the remaining term of each Non-Assignable Contract, Seller will use commercially reasonable efforts to (a) obtain the consent of the third parties required thereunder, and (b) enforce, at the request of Buyer and for the account of Buyer, any right of Seller arising from such Non-Assignable Contract against the other party or parties thereto (including the right to elect or terminate any such Non- Assignable Contract in accordance with the terms thereof). Seller will not take any action or suffer any omission that would reasonably be expected to limit, restrict or terminate in any material respect the benefits to Buyer of such Non-Assignable Contract unless, in good faith and after consultation with and prior written notice to Buyer, Seller is (i) ordered to do so by a Governmental Authority of competent jurisdiction or (ii) otherwise required to do so by law; provided , however , that if any such order is appealable and Buyer so requests, Seller will take such reasonable actions as are requested by Buyer to file and pursue such appeal and to obtain a stay of such order, and the Seller will reimburse Buyer for the costs incurred by Buyer related to the appeal of such an order. Nothing in this Agreement or the Bill of Sale and Assumption Agreement constitutes a sale, assignment, transfer or conveyance to, or assumption by, Buyer of the Non-Assignable Contracts. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to Buyer is obtained following the Closing, Seller will transfer such Non-Assignable Contract to Buyer by execution and delivery of an instrument of conveyance reasonably satisfactory to Buyer within five business days following receipt of such approval or consent. | 22Consents
|
This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to the Phantom Units granted hereby. Without limiting the scope of the preceding sentence, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force and effect. | 38Entire Agreements
|
If any provision or any part of any provision of this Release is for any reason held to be invalid, unenforceable or contrary to public policy, law, statute and/or ordinance, then the remainder of this Release shall not be affected thereby and shall remain valid and fully enforceable. | 79Severability
|
Seller and Guarantor agree to pay and reimburse Buyer for all out‑of‑pocket costs and expenses incurred by Buyer in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the fees and disbursements of Cadwalader, Wickersham & Taft LLP, counsel to Buyer. | 41Expenses
|
The purchase of the Founder Shares from the Sellers (the “ Closing ”) will occur at a time that is mutually agreeable to the parties on the signature pages hereof, which Closing shall not occur prior to the first business day following the later of the filing by the Company of (i) all of its Federal, state and local tax returns for the calendar year 2016 (with the exception of any franchise tax due) and (ii) its Annual Report on Form 10-K for the year ending December 31, 2016 (the “ Closing Date ”). It shall be a condition to the obligations of the Buyer on the one hand and the Sellers on the other hand, that the other party’s representations and warranties are true and correct on the Closing Date with the same effect as though made on such date, unless waived in writing by the party to whom such representations and warranties are made. | 18Closings
|
The provisions of this Section 10.4 shall survive the resignation or removal of the Indenture Trustee, the Calculation Agent and the Paying Agent and the termination of this Base Indenture. | 85Survival
|
The Company may deduct and withhold from any amounts payable under this Agreement such federal, state, local, foreign or other taxes as are required to be withheld pursuant to any applicable law or regulation. | 99Withholdings
|
Holder shall not issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval of the Company and OAC. Holder hereby authorizes the Company and OAC to publish and disclose in any announcement or disclosure required by the SEC, Nasdaq (or, if applicable, any other Acceptable Securities Exchange) or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), Holder’s identity and ownership of the Shares and the nature of Holder’s commitments and agreements under this Agreement, the Merger Agreement and any other Ancillary Documents. | 71Publicity
|
Executive will report to the Chief Executive Officer of the Company (the “ CEO ”) performing such duties as are normally associated with Executive’s position, and as more fully described on Exhibit A hereto, and such duties as are assigned to Executive from time to time by the CEO, subject to the oversight and direction of the CEO. Executive shall perform Executive’s duties under this Agreement principally out of the Company’s corporate headquarters which are currently located in Stamford, Connecticut. In addition, Executive shall make such business trips to such places as may be necessary or advisable for the efficient operations of the Company. | 32Duties
|
This Agreement may not be assigned (except by operation of law) by any party without the consent of the other parties. | 7Assignments
|
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