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NHL is a limited company duly organized, validly existing, and in good standing under the Laws of the Province of Ontario, Canada, and has the corporate power and is duly authorized under all applicable Laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. NHL has delivered to the Company complete and correct copies of the organizational documents and the corporate minute books of NHL as in effect on the Effective Date (the “NHL Organizational Documents”). NHL has full corporate power and authority to carry on its businesses as it is now being conducted and as now proposed to be conducted and to own or lease its properties and assets. Except as set forth in the NHL Disclosure Schedules, NHL does not have any subsidiaries or direct or indirect interest (by way of stock ownership or otherwise) in any firm, corporation, limited liability company, partnership, association or business. | 70Powers
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Permit any Loan or the proceeds of any Loan, directly or, to the knowledge of the Borrower, indirectly, (i) to be lent, contributed or otherwise made available to fund any activity or business in any Designated Jurisdiction; (ii) to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions; or (iii) in any other manner that will result in any violation by any Person (including any Lender, Swing Line Lender, L/C Issuer or the Administrative Agent) of any Sanctions. | 78Sanctions
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Any notices or other information required hereunder to be provided to the Agent shall be made available by the Agent to each of the Banks on the same day (if practicable) and, in any case, on the next Business Day following the Agent’s receipt thereof. Notwithstanding the foregoing, it is agreed by the Banks that the Agent shall have no obligation to send to the Banks the information which is deemed delivered by the Borrower under §8.4 by the Borrower’s filing with the SEC of its Form 10-Q and Form 10-K, all as more particularly described in the last paragraph of §8.4, and the Agent shall have no liability to any Person for any Bank’s failure to obtain such SEC filings. | 65Notices
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This Third Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together, shall constitute one and the same instrument. This Third Amendment may be executed and delivered by electronic mail in pdf format or by facsimile transmission. Any such transmission shall bind the party so executing and delivering this Third Amendment. | 26Counterparts
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ICANN is a nonprofit public benefit corporation duly organized, validly existing and in good standing under the laws of California. ICANN has all requisite corporate power and authority to enter into this Agreement. All corporate approvals and actions necessary for the entrance by ICANN into this Agreement have been obtained and this Agreement has been duly and validly executed and delivered by ICANN. | 66Organizations
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The Borrower agrees to defend, protect, indemnify and hold harmless the Lender and each of its affiliates, officers, directors, employees, and agents (the “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnitee incurred in connection with any action or proceeding between the Borrower and any Indemnitee or between any Indemnitee and any third party or otherwise, whether or not relating to any investigative, administrative or judicial proceeding and whether or not such Indemnitee shall be designated a party thereto), imposed on, incurred by, or asserted against such Indemnitee (whether direct, indirect, special, consequential, punitive or treble and whether based on any federal, state or local, or foreign, laws or other statutory regulations, including, without limitation, environmental laws, securities and commercial laws and regulations, under common law or at equitable cause, or in contract or otherwise) in any manner relating to or arising out of the Loan Documents, or any act, event or transaction related or attendant thereto or contemplated thereby, or any action or inaction by an Indemnitee under or in connection therewith, any commitments of the Lender hereunder, or the making of the Term Loan, or the management of such Term Loan, or the use or intended use of the proceeds of any Term Loan, advance or other financial accommodation provided hereunder including, in each such case, any allegation of any such matters, whether meritorious or not (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall not have any obligation to any Indemnitee hereunder with respect to Indemnified Matters to the extent caused by or resulting from (i) the willful misconduct or gross negligence of an Indemnitee or (ii) a material breach by such Indemnitee of its obligations under any Loan Document. The covenants of the Borrower contained in this Section 5.3 shall survive the payment in full of all amounts due and payable under the Loan Documents and the full satisfaction of all other obligations of the Borrower. | 50Indemnity
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This Award Agreement will be construed and interpreted in accordance with the laws of the State of Maryland without regard to conflict of law principles. | 47Governing Laws
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This Amendment Number Eighteen may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. | 26Counterparts
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The plan administrator shall serve without bond unless state or federal statutes require otherwise, in which event the Company shall pay the premium of any statutorily required bond. Except as may otherwise be provided herein, the expenses of the plan administrator shall be paid by the Company. Such expenses shall include all expenses incident to the functioning of the plan administrator, including litigation costs, fees of accountants, counsel and other specialists, and other costs of administering the Plan. | 41Expenses
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The Grantor has good title to such Aircraft, free and clear of Liens other than Permitted Liens. Such Aircraft has been duly certified by the FAA as to type and airworthiness in accordance with the terms of the Aircraft Security Agreement. This Aircraft Security Agreement (with any Aircraft Security Agreement Supplement describing such Aircraft attached) has been duly filed for recordation (or shall be in the process of being so duly filed for recordation) with the FAA pursuant to the Transportation Code. Such Aircraft is duly registered with the FAA in the name of the Grantor. | 90Titles
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The Company agrees to employ Executive, and Executive agrees to be employed by the Company, for a period (the “ Initial Term ”) commencing on the Effective Date and ending on the third (3 rd ) anniversary of the Effective Date, unless earlier terminated in accordance with Section 4. If neither party gives the other at least ninety (90) days written notice that it intends for this Agreement to terminate at the end of the Initial Term, then this Agreement will continue for successive one-year terms (each a “ Renewal Term ”), unless earlier terminated in accordance with Section 4, until either party gives the other party at least ninety (90) days written notice that it intends for this Agreement to terminate at the end of any such Renewal Term. The Initial Term and any Renewal Terms will constitute the “ Term ”. If either Executive or the Company gives timely notice of termination pursuant to this Section 2, then Executive’s employment shall end on the last day of the Term. A termination of Executive’s employment by reason of a timely notice of termination pursuant to this Section 2 shall not be considered a termination for Cause or without Cause by the Company, or a termination for Good Reason or without Good Reason by Executive. | 89Terms
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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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This Agreement is made in the State of Ohio and the validity, construction, interpretation and enforcement of this Agreement, and the rights of the parties thereunder shall be determined under, governed by and construed in accordance with the internal laws of the State of Ohio, without regard to principles of conflicts of law. Service of process, sufficient for personal jurisdiction in any action against the Company, may be made by registered or certified mail, return receipt requested, to the address set forth in Paragraph 26 hereof. | 47Governing Laws
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Within thirty (30) days after October 20, 2018, and within thirty (30) days after each successive October 20 thereafter that this Agreement is in effect, the Company shall have the right to review this Agreement, and in its sole discretion either continue and extend this Agreement, terminate this Agreement, and/or offer Employee a different agreement and will notify Employee of such action within said thirty (30) day time period mentioned above. This Agreement shall remain in effect until so terminated and/or modified by the Company. Failure of the Company to take any action within said thirty (30) days shall be considered an extension of this Agreement for an additional twelve (12) month period of time. Notwithstanding anything to the contrary contained in this “sunset provision,” it is agreed that if a Change of Control occurs while this Agreement is in effect, then this Agreement shall not be subject to termination or modification under this provision, and shall remain in force for a period of twelve (12) months after such Change of Control, subject to further twelve (12) month anniversary date renewals. | 89Terms
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As of the Effective Date, Schedule 3.12 sets forth the name of, and the ownership interest of Holdings and each Subsidiary in, each Subsidiary. | 83Subsidiaries
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All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the Republic of the Marshall Islands, without regard to the principles of conflicts of law thereof. | 47Governing Laws
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All headings and captions contained in this Agreement and in the table of contents hereto are inserted for convenience only and shall not be deemed a part of this Agreement. | 48Headings
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EACH OF GUARANTOR AND LENDER (FOR ITSELF AND ITS SUCCESSORS, ASSIGNS AND PARTICIPANTS) WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS GUARANTY, THE LOAN DOCUMENTS OR THE TRANSACTIONS PROVIDED FOR HEREIN OR THEREIN, IN ANY LEGAL ACTION OR PROCEEDING OF ANY TYPE BROUGHT BY ANY PARTY TO ANY OF THE FOREGOING AGAINST ANY OTHER SUCH PARTY, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT SITTING WITHOUT A JURY. | 96Waiver Of Jury Trials
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No Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date or result from this Amendment becoming effective in accordance with its terms. | 62No Defaults
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The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except registrations and filings necessary to perfect Liens created under the Loan Documents, (b) will not violate any applicable law or regulation or the charter, by‑laws or other organizational documents of any Loan Party or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Parent or any Restricted Subsidiary or its assets the violation or breach of which would result in or would reasonably be expected to result in a Material Adverse Effect, or give rise to a right thereunder to require any payment to be made by the Parent or any Restricted Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of the Parent or any Restricted Subsidiary, except Liens created under the Loan Documents. | 61No Conflicts
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In addition to the Base Salary and Incentive Compensation, the Executive will be entitled to such benefits as may be available from time to time for employees of the Employer. All such benefits will be awarded and administered in accordance with the Employer’s standard policies and practices. Such benefits may include, by way of example only, health, dental, vision, profit-sharing plans, retirement, and disability insurance benefits and such other benefits as the Employer deems appropriate. In addition to the benefits described in this Section 4.4, Employer shall provide to Executive at no cost to Executive, a $500,000 term insurance policy. | 12Benefits
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The Bank shall provide the Company with a written notice specifying the nature of any Bank Event of Default, or any event which, with the giving of notice or passage of time or both, would constitute a Bank Event of Default, or any development or other information which is likely to have a Bank Material Adverse Effect. Notice pursuant to this Section 11.5(b) relating to Bank Events of Default shall be provided within two (2) Business Days after the Bank has Knowledge of the existence of such default. Notices relating to all other events or developments described in this Section 11.5(b) shall be provided promptly after the Bank obtains Knowledge of the existence of such event or development. | 65Notices
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Upon receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries (as defined in the Securities Purchase Agreement), the Company shall within one (1) Business Day after any such receipt or delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries. | 31Disclosures
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The Consultant acknowledges that a breach of this Agreement cannot be adequately compensated for by money damages, and agrees that specific performance is an appropriate remedy for any breach or threatened breach hereof. The Consultant acknowledges that compliance with the provisions of this Agreement is necessary in order to protect the proprietary rights of the Company. The Consultant further acknowledges that any unauthorized use or disclosure to any third party in breach of this Agreement will result in irreparable and continuing damage to the Company. Accordingly, the Consultant hereby: (i) consents to the issuance of any injunctive relief or the enforcement of other equitable remedies against it at the suit of the Company (without bond or other security), to compel performance of any of the terms of this Agreement; and (ii) waives any defenses thereto, including without limitation the defenses of failure of consideration, breach of any other provision of this Agreement, and availability of relief in damages. All remedies, whether under this Agreement, provided by law, or otherwise, shall be cumulative and not alternative. | 81Specific Performance
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The agreements and obligations of the Borrower and each Recipient in this Article V shall survive the payment of all other Obligations and termination of this Agreement. | 85Survival
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Upon the occurrence and during the continuance of any Event of Default, in addition to the rights and remedies available pursuant to Article VI hereof and under the other Loan Documents, (i) the Administrative Agent may exercise in respect of the L/C Account Collateral all the rights and remedies of a secured party upon default under the UCC (whether or not the UCC applies to the affected L/C Account Collateral), and (ii) the Administrative Agent may, without notice to the Borrower, except as required by law and at any time or from time to time, charge, set ‑off and otherwise apply all or any part of the Obligations of the Borrower under the Loan Documents against any funds held with respect to the L/C Account Collateral or in any other deposit account. | 75Remedies
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The location where Seller keeps its books and records, including all computer tapes and records related to the Repurchase Assets is its chief executive office. | 73Records
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The Company intends to use the net proceeds of this offering after payment of the expenses of the offering for the funding of its AG013 clinical trial and lantibiotics programs and for general corporate purposes, including working capital and shall not use such proceeds for the satisfaction of any portion of the Company’s debt (other than trade payables in the ordinary course of the Company’s business and prior practices), or to redeem any Common Stock or Common Stock Equivalents. | 92Use Of Proceeds
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Neither this Letter Agreement nor any of the rights, interests or obligations under this Letter Agreement shall be assigned or delegated, in whole or in part, by operation of Law or otherwise by any of the parties without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. Any purported assignment in violation of this Section 11 shall be null and void. | 7Assignments
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Each party shall be solely responsible for all costs and expenses incurred by it in connection with the negotiation, preparation and performance of and compliance with the terms of this Agreement. The filing fee for the FCC Consent and any transfer taxes that may be applicable to the transfer of the Station Assets hereunder shall be paid one-half by Seller and one-half by Buyer. Each party is responsible for any commission, brokerage fee, advisory fee or other similar payment that arises as a result of any agreement or action of it or any party acting on its behalf in connection with this Agreement or the transactions contemplated hereby. The prevailing party in any suit or arbitration brought regarding this Agreement shall receive, from the other party, all reasonable legal fees, expenses and costs associated with obtaining the relief afforded by this Agreement. | 41Expenses
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The Company shall indemnify Executive and hold him harmless from and against all claims, losses, damages, expenses or liabilities (including expenses of defense and settlement) based upon or in any way arising from or connected with his employment by the Company or his service as a member of the Board of Directors, to the maximum extent permitted by law. To the fullest extent permitted by law, the Company shall advance to Executive all expenses necessary in connection with the defense of any action or claim which is brought if indemnification cannot be determined to be available prior to the conclusion of such action or the investigation of such claim. The Company hereby represents that it maintains and will continue to maintain during the Employment Term (and for the applicable statute of limitations thereafter) director and officer insurance in an amount of no less than One Million Dollars ($1,000,000) in coverage and shall include Executive as an insured in any directors’ and officers’ insurance policy it maintains. The provisions of this Section 8 shall survive any termination or expiration of this Agreement. | 49Indemnifications
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THIS GUARANTY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. | 47Governing Laws
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On the Closing Date, (a) each Purchaser shall pay to the Company its Unit Purchase Price in United States dollars and in immediately available funds, by wire transfer to the Company’s account as set forth in instructions previously delivered to each Purchaser, (b) the Company shall irrevocably instruct the Transfer Agent to deliver, on an expedited basis, to each Purchaser, either in book entry form in the Direct Registration System or in the form of a stock certificate, as set forth on the Stock Registration Questionnaire included as Exhibit C , the number of Unit Shares set forth opposite such Purchaser’s name on Exhibit A hereto, and (c) the Company shall issue to each Purchaser a warrant substantially in the form attached hereto as Exhibit B (each a “ Warrant ” and collectively, the “ Warrants ”) pursuant to which such Purchaser shall have the right to acquire the number of Warrant Shares set forth opposite such Purchaser’s name on Exhibit A hereto, and in the case of clauses (b) and (c), duly executed on behalf of the Company and registered in the name of such Purchaser as set forth on the Stock Registration Questionnaire included as Exhibit C . The Warrants issued and sold at the Closing shall have an initial exercise price equal to the Warrant Exercise Price. | 68Payments
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The Plan and all actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware. | 47Governing Laws
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Title to all Crude Oil delivered under this Agreement, including all constituents thereof, shall remain with and in Shipper or its customers at all times; provided , however , that title to Crude Oil used as PLA shall pass from Shipper or the relevant third party to Gatherer immediately downstream of the Receipt Point. | 90Titles
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The Plan shall be construed and administered under the laws of the State of Texas, except to the extent preempted by applicable federal law. | 4Applicable Laws
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THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS. | 47Governing Laws
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The Consultant will be an independent contractor performing such services as requested by the OneMain entities and as are mutually agreed to by the Consultant and OneMain from time to time, including the services described on the attached SOW. The Consultant agrees to provide all services in a professional and competent manner, and in accordance with generally accepted standards for the type of work performed. | 32Duties
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This Assignment shall be governed by, and construed under, the laws of the State of Texas. | 47Governing Laws
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Each Party represents and warrants to the other Party that: (i) it has the authority to enter into this Agreement; (ii) its signatories have been properly authorized to enter into this Agreement and to perform all of the covenants and agreements stated herein; (iii) it has not sold, assigned, transferred, hypothecated, pledged, encumbered, or otherwise disposed of, in whole or in part, voluntarily or involuntarily, any claim, cause of action, counterclaim, liability, damage, loss, debt, demand, obligation, suit, cost, expense, fee, or otherwise that has been released, remised, or discharged pursuant to this Agreement; (iv) this Agreement has been executed freely and voluntarily, without economic compulsion or other duress, and with full knowledge of its legal significance and consequences; and (v) it has entered into the Agreement regardless of and without reliance on any witness or expert testimony generated during the Litigation or documents produced or not produced during the Litigation. | 98Warranties
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Section 18 of the Employment Agreement is hereby amended by removing therefrom the final sentence. The remainder of Section 18 of the Employment Agreement is unchanged. | 6Arbitration
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(i) Company corporate and enter and perform obligations Agreement; (ii) execution and Agreement by Company, consummation by transactions contemplated and and issuance, and Shares duly authorized by corporate and further authorization the Board Directors or stockholders required; and (iii) Agreement has executed and delivered and constitutes valid and obligation against in accordance with terms, except as such enforceability may be limited by applicable bankruptcy, securities, insolvency, similar laws relating affecting enforcement of, creditors’ rights and remedies, by principles of general application. | 10Authorizations
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Except as otherwise provided in Paragraph 4(b), if the Participant dies, unvested Performance Awards will be forfeited. | 27Death
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Guarantor is duly formed under the laws of its formation and is in good standing in the State of California and in all jurisdictions in which it does business or the ownership of its properties requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the properties, business, results of operations or financial or other condition of Guarantor. | 66Organizations
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Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. | 20Confidentiality
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The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 4.03(i) of the Guarantee and Collateral Agreement. | 51Insurances
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The Borrower has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the other reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished but excluding information of a general economic or industry nature), taken as a whole, 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 misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. | 31Disclosures
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This Contract stipulates the entire agreement reached between the parties with regard to the content of this Contract, and replaces all previous contracts and understandings with regard thereto. The Company and the Employee may at any time, with regard to Trade Secrets, the non-compete clause, and/or intellectual property rights, draft contractual provisions that are more detailed and more strict. Once said contractual provisions become effective, they shall automatically become an appendix and an integral part of this Contract. | 38Entire Agreements
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Real property taxes and personal property taxes, if any, shall be prorated based upon the current year’s (i.e., year of closing) tax, if known. If the Closing Date occurs on a date when the current year’s taxes are not fixed and the current year’s assessment is available, taxes will be prorated based upon such assessment and prior year’s millage. If the current year’s assessment is not available, then taxes will be prorated on the prior year’s tax. However, if any tax pro-ration is based upon other than the current year’s tax, then at the request of either Purchaser or Seller, the taxes shall be subsequently readjusted upon the receipt of the tax bill for the current year. All such tax pro-rations, whether based upon the current year’s tax, or prior year’s tax, will be made with an appropriate allowance for the maximum allowable discount. In the event either party fails or refuses to re-prorate the real estate taxes within thirty (30) days following receipt of the actual tax bill for the current year and a written request by the other party for such re-proration, then the amount due shall bear interest from the expiration of such thirty (30) day period at the rate of five percent (5%) per annum. In the event a party is obligated to institute any legal proceeding to recover the re-proration of real estate taxes and the interest due as herein set forth, the prevailing party shall be entitled, in addition, to recover Attorneys Fees from the non-prevailing party. | 87Taxes
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Except as otherwise expressly provided herein, each of the Parties hereto shall pay all of its own fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers, brokers or other representatives and consultants and appraisal fees, costs and expenses) incurred in connection with the negotiation of this Agreement, and the consummation of the transactions contemplated hereby and hereby. | 41Expenses
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Except as otherwise provided for in the Loan Documents, this Guaranty shall terminate only when all of the Guaranteed Obligations have been indefeasibly paid in full, including all interest thereon, late charges and other charges and fees included within the Guaranteed Obligations. When the conditions described above have been fully met, Lender will, upon request, furnish to Guarantor a written cancellation of this Guaranty. | 88Terminations
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This Agreement represents an amendment and restatement of the Existing Credit Agreement. Any indebtedness under the Existing Credit Agreement continues under this Agreement, and the execution of this Agreement does not indicate a payment, satisfaction, novation, or discharge thereof. | 2Amendments
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If any payments made by Merck pursuant to this Agreement (or any Milestone Payments or Royalty Payments made under the Option Agreement) are subject to withholding Taxes under Applicable Laws of any jurisdiction or Governmental Authority, Merck is authorized deduct and withhold the amount of such Taxes for the account of KalVista to the extent required by Applicable Law; such amounts payable to KalVista will be reduced by the amount of Taxes deducted and withheld; and treated as paid to KalVista for all purposes of this Agreement. Notwithstanding anything in the foregoing to the contrary, (i) Merck shall be responsible for any withholding Taxes imposed on any payments made pursuant to this Agreement (or any Milestone Payments or Royalty Payments made under the Option Agreement) by any jurisdiction or Governmental Authority outside of the United Kingdom, Switzerland or the United States as a result of Merck’s exploitation or use of any of the Purchased Assets through an Affiliate, branch or other place of business in such jurisdiction; and (ii) Merck shall increase the amounts payable to KalVista under this Agreement (or any Milestone Payments or Royalty Payments made under the Option Agreement) with respect to such withholding Taxes so that KalVista receives the same amount of payments after deduction of such withholding Taxes (including with respect to any additional payments under this Section 3.3(c)) as KalVista would have if such withholding Taxes had not been imposed. | 86Tax Withholdings
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This Agreement may be terminated prior to the end of the Consultation Period in the following manner: (a) by either the Company or the Consultant upon not less than thirty (30) days prior written notice to the other party; (b) by the non-breaching party, upon twenty-four (24) hours prior written notice to the breaching party if one party has materially breached this Agreement; or (c) at any time upon the mutual written consent of the parties hereto. In the event of termination, the Consultant shall be entitled to payment for services performed and (subject to the limitation in Section 3.2) for expenses paid or incurred prior to the effective date of termination that have not been previously paid. Notwithstanding the foregoing, the Company may terminate this Agreement effective immediately by giving written notice to the Consultant if the Consultant breaches or threatens to breach Section 6. | 88Terminations
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Upon termination of the Term and Executive’s employment hereunder for any reason, Executive shall be deemed to have voluntarily resigned from the Board and any and all positions he holds as an officer or director of Company or any affiliate. | 35Employment
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The Company shall, by 9:30 a.m. (New York City time) on the next Trading Day following the date hereof, disclose the material terms of the transactions contemplated hereby by issuing a Current Report on Form 8-K regarding the transaction with the Transaction Documents included as exhibits. The Company and the Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor the Purchaser shall issue any such press release nor otherwise make any such public statement (other than in the Company’s SEC Reports after the Closing Dates or exhibits filed therewith) without the prior consent of the Company, with respect to any press release of the Purchaser, or without the prior consent of the Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, other than in connection with the Company’s SEC Reports or disclosures to any regulatory agency or Trading Market that the Company determines are necessary or appropriate, the Company shall not publicly disclose the name of the Purchaser, or include the name of the Purchaser, in any press release or similar public statement, without the prior written consent of the Purchaser. | 71Publicity
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This Agreement may be modified or amended only pursuant to a writing executed by both parties. | 2Amendments
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This Agreement constitutes the sole and entire agreement between the Company and the Executive and supersedes any and all understandings and agreements (including, without limitation, the Employment Agreement) made prior hereto, if any. | 38Entire Agreements
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In addition to the forfeiture of Performance Shares pursuant to other provisions of this Agreement, if either (i) the Grantee’s employment with the Company or a Subsidiary terminates before December 31, 20[__], and before the occurrence of a Change in Control, for any reason other than as set forth in Section 4 hereof or (ii) the Committee finds that the Grantee has engaged in any fraud or intentional misconduct as described in Section 20 hereof, the Performance Shares will be forfeited. Performance Shares shall be considered to have been forfeited upon the event that causes such forfeiture and shall not be considered to be outstanding thereafter. | 44Forfeitures
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This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. | 26Counterparts
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Assignor hereby consents to the nonexclusive personal jurisdiction in any state or Federal court located within the State of New York and the State of Florida. | 21Consent To Jurisdiction
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Each of the Senior Lien Agent and the Junior Lien Agent is hereby authorized to demand specific performance of this Agreement, whether or not the Borrowers or any Guarantor shall have complied with any of the provisions of any of the Credit Documents, at any time when the other Party shall have failed to comply with any of the provisions of this Agreement applicable to it. Each of the Senior Lien Agent, for and on behalf of itself and the Senior Lien Secured Parties, and the Junior Lien Agent, for and on behalf of itself and the Junior Lien Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to such remedy of specific performance. | 81Specific Performance
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Any Lender may at any time, without the consent of, or notice to, any Borrower or Agent, sell to one or more Persons (other than any Borrower or any Borrower’s Affiliates) participating interests in its Loan, commitments or other interests hereunder (any such Person, a “ Participant ”). In the event of a sale by a Lender of a participating interest to a Participant, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes, (ii) Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder, and (iii) all amounts payable by each Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. Each Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided, however , that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 11.5. | 67Participations
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This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. | 4Applicable Laws
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This Operating Agreement may not be modified or amended except by written agreement of the Parties. | 2Amendments
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The representations, warranties made herein and in any certificate delivered in connection herewith shall survive for a period of fifteen (15) months following the Closing Date, at which time they shall expire; provided, however, that (a) the representations and warranties set forth in Sections 3.1, 3.3, 3.4, 4.1, 4.3, and 4.19 of this Agreement (the “ Fundamental Representations ”) shall survive until the expiration of the applicable statute of limitations and (b) the representations and warranties in Section 4.6 of this Agreement shall survive until the expiration of the applicable statute of limitations. If written notice of a claim has been given prior to the expiration of the applicable representations and warranties, then notwithstanding any statement herein to the contrary, the relevant representations and warranties shall survive as to such claim, until such claim is finally resolved. Unless a specified period is set forth in this Agreement (in which event such specified period will control), all agreements and covenants contained in this Agreement will survive the Closing and remain in effect until thirty (30) days after the expiration of the applicable statutes of limitations. To avoid any doubt, the parties agree that the time limitations herein limit the time in which a claim may be brought even though such time limits may be less than those otherwise afforded under applicable statutes of limitations. In the event that a claim has been brought within such time periods, the running of such time prior to the final adjudication of such claim shall not time bar the continuation of such claim. | 85Survival
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The closing on the purchase and sale of the 1% Interest shall occur simultaneously with the closing on the sale of the 50% Interest to Cargill, which closing shall be within thirty (30) days following the date on which Cargill exercises the Option. The closing shall occur at a time and place to be mutually agreed upon. The 1% Interest shall be conveyed by ACSC to GGC by an Assignment of Membership Interest in substantially the form attached hereto as Exhibit A. | 18Closings
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Each party acknowledges and agrees that its compliance with each of the provisions of this Agreement is necessary in order to protect the other party and the investment of time and resources the other party has made in its business, and that any breach of any of this Agreement by either party will irreparably and continually harm the other party in a manner for which money damages may not be adequate compensation. Therefore, in the event of a breach or threatened breach of any of the provisions of this Agreement by either party, the other party shall be entitled, in addition to any other remedies and damages available to seek a temporary, preliminary and/or permanent injunction, without bond, to restrain the violation of any of the provisions of this Agreement by either party and any persons or entities acting for or in concert with such party. | 37Enforcements
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Unless otherwise specified herein or therein, all terms defined in this Agreement shall have the defined meanings given herein when used in any certificate or other document made or delivered pursuant hereto. | 28Defined Terms
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The rights and remedies with respect to any breach of any representation and warranty made by any Originator or any Lessee pursuant to Article IV , the indemnification provisions of Article VI , and the provisions of Sections 7.4 , 7.5 , 7.6 , 7.8 , 7.9 , 7.10 , 7.11 , 7.12 and 7.14 shall survive any termination of this Agreement. | 85Survival
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Such Party has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby to be consummated by such Party. The execution and delivery of this Agreement by such Party, the performance of such Party’s obligations hereunder and the consummation by such Party of the transactions contemplated hereby to be consummated by such Party have been duly and validly authorized by all necessary action on the part of such Party. No other proceedings on the part of such Party are necessary to approve this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Party and constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms (except in all cases as such enforceability may be limited by the Enforceability Exceptions). | 9Authority
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The Note Holder is either an individual or an entity duly organized, validly existing under, and by virtue of, the laws of the jurisdiction of its incorporation or formation, and is in good standing under such laws. | 66Organizations
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This Agreement and any documents and agreements executed in connection herewith embody the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous oral or written agreements, representation, warranties, contracts, correspondence, conversations, memoranda and understandings between or among the parties or any of their agents, representatives or affiliates relative to such subject matter. | 38Entire Agreements
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As of the date of execution of this Agreement, there are 47,600,000 shares of the Company’s common stock issued and outstanding. Except as disclosed to the Investor or in documents (the “Exchange Act Documents”) filed by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), there are no other outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company is a party or of which the Company has knowledge and relating to the issuance or sale of any capital stock of the Company, any such convertible or exchangeable securities or any such rights, warrants or options. | 16Capitalization
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Without limiting the generality of the foregoing, each Party to this Agreement agrees to take all necessary actions to ensure that the provisions of this Agreement are implemented. At the reasonable request of any other Party hereto and without further consideration, each Party hereto shall execute and deliver such additional documents and take all such further action as may be necessary or appropriate to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. | 45Further Assurances
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The maximum number of shares of Stock reserved and available for issuance under the Plan shall be 821,621 shares, subject to adjustment as provided in this Section 3. For purposes of this limitation, the shares of Stock underlying any Awards that are forfeited, canceled or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan. Notwithstanding the foregoing, the following shares shall not be added to the shares authorized for grant under the Plan: (i) shares tendered or held back upon exercise of an Option or settlement of an Award to cover the exercise price or tax withholding, and (ii) shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right upon exercise thereof. In the event the Company repurchases shares of Stock on the open market, such shares shall not be added to the shares of Stock available for issuance under the Plan. The shares available for issuance under the Plan may be authorized but unissued shares of Stock or shares of Stock reacquired by the Company. | 46General
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Case may assess Dealer a sales and service fee for sales of new Equipment by Dealer that are registered in a county outside of Dealer’s SSM. The amount of such fee, the operative regulations and policies, and the Equipment to which it applies are published in the DOG, and may be amended by Case in its sole discretion. Case reserves the right not to assess a sales and service fee against other dealers for their sales to Customers within Dealer’s SSM, if Dealer is failing to meet the market share obligations contained in Section 9.1(a). | 77Sales
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Subject to the recording of an Assignment by Agent in the Register pursuant to Section 2.4(b) , (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). | 34Effectiveness
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The table of contents and headings contained in this Agreement are for reference purposes only and shall not control or affect the meaning or construction of this Agreement. | 48Headings
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No failure or delay on the part of Company in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No amendment, modification or waiver of, or consent with respect to, any provision of this Note shall in any event be effective unless (a) the same shall be in writing and signed and delivered by Buyer and Company and acknowledged and agreed to by Administrative Agent, and (b) all consents required for such actions under the Transaction Documents shall have been received by the appropriate Persons. | 2Amendments
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All demands, notices, and communications hereunder shall be in writing and shall be delivered, sent electronically by email (if an email address is provided) or telecopier, or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, and addressed in each case as follows: the Issuing Entity, at c/o Wilmington Trust, National Association, as Owner Trustee, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 636-4140), Attention: Corporate Trust Administration, with a copy to the Administrative Agent, at One Nissan Way, Franklin, Tennessee 37067 (telecopier no. (615) 725-8530) (email: [email protected]), Attention: Treasurer; NILT Trust, at One Nissan Way, Franklin, Tennessee 37067 (telecopier no. (615) 725-8530) (email: [email protected]), Attention: Treasurer; Nissan-Infiniti LT, at One Nissan Way, Franklin, Tennessee 37067 (telecopier no. (615) 725-8530) (email: [email protected]), Attention: Treasurer; NMAC, at One Nissan Way, Franklin, Tennessee 37067 (telecopier no. (615) 725-8530) (email: [email protected]), Attention: Treasurer; the Depositor, at One Nissan Way, Franklin, Tennessee 37067 (telecopier no. (615) 725-8530) (email: [email protected]), Attention: Treasurer; NILT, Inc., U.S. Bank National Association, 190 South LaSalle Street, 7th Floor, Chicago, Illinois 60603 (telecopier no. (312) 332-7996) (email: [email protected]) Attention: NILT Inc.; Wilmington Trust, National Association, as Owner Trustee, at Wilmington Trust, National Association, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 636-4140), Attention: Corporate Trust Administration; Wilmington Trust Company, as Delaware Trustee, at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 636-4140), Attention: Corporate Trust Administration; U.S. Bank National Association, as Indenture Trustee, at 190 South LaSalle Street, 7th Floor, Chicago, Illinois 60603 (telecopier no. (312) 332-7996) (email: [email protected]), Attention: Nissan Auto Lease Trust 2017-A; U.S. Bank, as Trust Agent, at U.S. Bank National Association, 190 South LaSalle Street, 7th Floor, Chicago, Illinois 60603 (telecopier no. (312) 332-7996) (email: [email protected]), Attention: Nissan Auto Lease Trust 2017-A; or at such other address as shall be designated by any of the foregoing in written notice to the other parties hereto. Delivery shall occur only when delivered by hand or, in the case of mail, email or facsimile notice, upon actual receipt or reported tender of such communication by an officer of the intended recipient entitled to receive such notices located at the address of such recipient for notices hereunder; provided , however , any demand, notice or communication to be delivered pursuant to this Agreement of Definitions to any Rating Agency shall be deemed to be delivered if a copy of such demand, notice or communication has been posted on any web site maintained by NMAC pursuant to a commitment to any Rating Agency relating to the Notes in accordance with 17 C.F.R. 240 17g-5(a)(3). | 65Notices
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Seller and Purchaser each hereby waives any right to jury trial in the event any party files an action relating to this Agreement or to the transactions or obligations contemplated hereunder. The provisions of this Section 27 shall survive Closing and any termination of this Agreement. | 96Waiver Of Jury Trials
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From and after the Target Retention Date, you will (i) cooperate in all reasonable respects with the Company and its affiliates and their respective directors, officers, attorneys and experts in connection with the conduct of any dispute, action, proceeding, investigation or litigation involving the Company or any of its affiliates, including, without limitation, any such dispute, action, proceeding, investigation or litigation in which you are called to testify and (ii) promptly make best efforts to respond within a reasonable timeframe to all requests by the Company and its affiliates relating to information concerning the Company which may be in your possession. The Company will, as a condition to your obligations under this Section 7, reimburse you for any reasonable out of pocket expenses and costs incurred as a result of such cooperation (including all reasonable, out-of-pocket attorney fees), provided that such expenses have been approved in writing in advance by an executive officer of the Company. | 24Cooperation
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The Employee shall be remunerated in line with the Swiss market for similar positions, with a yearly gross salary of SFr 390’000. (three hundred and ninety thousand Swiss Francs per annum) paid in 12 installments per year, i.e. SFr 32’500 per month. The Gross Fixed Annual Salary will be reviewed annually based on performance in the job and next salary review will be Jan 2018. Please note that there is no automatic entitlement to a salary increase in any year. Upon permanent relocation to headquarter location, temporary living allowance will cease and yearly gross salary will be adjusted to SFr 405’000 (four hundred and five thousand Swiss Frans per annum) paid in 12 installments per year. | 11Base Salary
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In case any provision of this Agreement shall be invalid, illegal or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as to most nearly retain the intent of the parties, and if such modification is not possible, such provision shall be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. | 79Severability
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No representation or warranty of the Borrower contained in any Loan Document or in any other document, certificate or written statement furnished to Lenders by or on behalf of the Borrower for use in connection with the transactions contemplated by this Agreement, as of the date made, contained any untrue statement of a material fact or omitted to state a material fact (known to any officer of the Borrower, in the case of any information not furnished by it) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. | 31Disclosures
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Use the proceeds of the Loans issued hereunder for any purpose inconsistent with Section 4.10 . The Borrower will not request any Loan, and the Borrower shall not, directly or indirectly, use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Person. | 92Use Of Proceeds
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The Administrative Agent shall have received all fees due and payable thereto or to the Arranger or any Existing Revolving Lender and/or U.S. Revolving Credit Lender on or prior to the Second Amendment Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to the Commitment Letter dated as of February 21, 2017 (the “ Commitment Letter ”) or the Fee Letter dated as of February 21, 2017 on or prior to the Second Amendment Effective Date. | 42Fees
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Each Party shall bear its own attorney’s fees, costs, and disbursements arising out of the Arbitration, and shall pay an equal share of the fees and costs of the Arbitrator(s); provided , however, the Arbitrator(s) shall be authorized to determine whether a Party is the prevailing party, and if so, to award to that prevailing party reimbursement for any or all of its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator(s). | 25Costs
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This Agreement shall be subject to and governed by the laws of the Stare of Illinois. | 47Governing Laws
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Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the Company’s Knowledge, none of the employees of the Company or any Subsidiary, is presently a party to any transaction with the Company or any Subsidiary or to a presently contemplated transaction (other than for services as employees, officers, and directors) that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the Securities Act. | 91Transactions With Affiliates
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The Company and the Executive covenant and agree that during the Term and following termination of the Term, neither party shall make any disparaging, false or abusive remarks or communications, written or oral, regarding the Executive, on the part of the Company, or the Company, the Company’s products, brands, trademarks, directors, officers, employees, consultants, advisors, licensors, licensees, customers, vendors or others with which it has a business relationship, on the part of the Executive. | 64Non-Disparagement
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This First Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single agreement. Delivery of an executed counterpart of a signature page of this First Amendment by facsimile or other electronic imaging means (e.g., in “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart of this First Amendment. | 26Counterparts
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This Agreement may be executed in counterparts, which when taken together shall constitute one and the same Agreement. | 26Counterparts
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The term "Mortgagor" as used in this Deed of Trust will be construed as singular or plural to correspond with the number of Persons executing this Deed of Trust as Mortgagor. If more than one Person executes this Deed of Trust as Mortgagor, his, her, its, or their duties and liabilities under this Deed of Trust will be joint and several. The terms "Mortgagee", "Mortgagor", and "Trustee" as used in this Deed of Trust include the heirs, executors or administrators, successors, representatives, receiver, trustees and assigns of those parties. Unless the context otherwise requires, terms used in this Deed of Trust which are defined in the Uniform Commercial Code of Texas are used with the meanings therein defined. | 89Terms
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This Agreement is governed by the laws of the State of Nevada, without regard to the choice of law rules of that State. All lawsuits, any claim, demand, action or cause of action arising from or related to this Agreement shall exclusively be brought to and adjudicated in the courts of Clark County, Nevada. | 4Applicable Laws
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(a) In exchange for the promises made by the Company in this Agreement, Employee unconditionally waives and releases all known and unknown, suspected and unsuspected, accrued and unaccrued, fixed and contingent claims and causes of action of any kind that he/she has or may have against the Company, its parents, subsidiaries, affiliates, predecessors, successors, divisions, affiliates, and its/their respective officers, directors, agents, attorneys, employees, employee benefit plans, plan administrators, insurers, assignees, fiduciaries, administrators, trustees, and legal representatives, both past and present (collectively the "Released Parties") from any and all known or unknown actions, causes of action, claims or liabilities of any kind which have been or could be asserted against the Released Parties arising out of or related to his/her employment with and/or termination from employment with any of the Released Parties and/or any other occurrence up to and including the date on which he/she signs this Waiver and Release (the "Effective Date"). | 97Waivers
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In order to induce Purchaser and Agent to execute and deliver this Amendment, Sellers hereby represent to Purchaser and Agent, that as of the date of this Amendment and after giving effect to the amendment provided for in Section 1 hereof, (i) each is in full compliance with all of the terms and conditions of the Program Documents and remains bound by the terms thereof and (ii) no Default or Event of Default has occurred and is continuing under the Program Documents. | 76Representations
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Upon Grantee’s separation from employment from the Company for any reason for a period of two (2) years from the date of such separation or in the event of termination due to Early Retirement or Normal Retirement, during the remaining vesting period prior to the Vesting Date, whichever is longer (the “Restriction Period”), Grantee agrees not to engage or participate, directly or indirectly, in any capacity, including but not limited to as an employee, consultant, advisor, contractor, partner, owner or otherwise, in a competing business, which is one that provides the same or substantially similar products or services as the Business. “Business” is defined as product development, marketing, sales and servicing of life insurance, health insurance and annuity products through captive agents, independent agents and direct response marketing channels. Life insurance includes individual life or group life, with or without return-of-premium benefit. Health insurance includes accidental death or supplemental health insurance products, with or without return-of premium benefits, including cancer, critical illness, hospital indemnity, Medicare supplement or Medicare Part D prescription drug coverage. Annuity includes deferred annuities or single premium immediate annuities. (All of the foregoing are referred to collectively as the “Business”). Grantee further agrees that he will not serve as a Board member for any company that provides the same or similar products or services as the Business. Grantee also agrees and understands that this noncompetition agreement extends to competition in any state in which Grantee worked or directed work for the Company or in which the Company has plans or intentions for future business operations for which the Grantee was involved (referred to as the “Restricted Area”). | 20Confidentiality
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(a) Subject to Section 10.01 of the Credit Agreement, no amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent, the Required Lenders and the Guarantors and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Upon a Guarantor becoming an Excluded Subsidiary as a result of a transaction permitted under the Loan Documents, such Guarantor shall be released from this Guaranty in accordance with the provisions of the applicable Loan Document(s), including, without limitation, Section 9.11 of the Credit Agreement. | 2Amendments
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