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After giving effect to this Amendment, each representation and warranty contained in the Credit Agreement and the other Loan Documents is true and correct in all material respects on the date hereof, except (a) to the extent any such representations and warranties are expressly limited to an earlier date, in which case such representations and warranties continue to be true and correct in all material respects as of such date and (b) to the extent that any such representation or warranty is qualified by “material” or “Material Adverse Effect” references therein, such representation or warranty is true and correct in all respects on the date hereof. | 98Warranties
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Seller shall provide to Buyer promptly upon the receipt thereof, any and all material written notices relating to the Property received by Seller or its property manager from any governmental or quasi-governmental instrumentality, insurance company, vendor or other party under any of the Contracts, tenant under any of the Leases, party to any lawsuit affecting the Property, or from any other entity or party, which notices are of a type not normally received in the ordinary course of Seller’s business, and which may have a material effect upon the Property. | 65Notices
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The Board may obtain and maintain, at the Company’s or a Partnership Group Company’s expense, insurance to protect the Members, Directors, Officers, employees and agents from any expense, liability or loss arising out of or in connection with such Person’s status and actions as a Member, Director, Officer, employee or agent. In addition, the Board may cause the Company to purchase and maintain insurance, at the Company’s expense, to protect the Company and any other Member, Director, Officer or agent of the Company who is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of a foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such Person against such expense, liability or loss under this Article VIII . | 51Insurances
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The Parties hereto acknowledge and agree that (a) each Party reviewed and negotiated the terms and provisions of this Agreement; and (b) the terms and provisions of this Agreement shall be construed fairly in accordance with their plain meaning, regardless of which Party was generally responsible for the preparation of this Agreement. | 23Construction
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All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of this Agreement, the authorization, sale, issuance and delivery of the Exchange Shares and the performance of all of the Company’s obligations hereunder, other than the Charter Amendment, have been taken or will be taken prior to the Closing. This Agreement has been duly executed by the Company and constitutes valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. | 10Authorizations
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If an Account of the Borrower or any Subsidiary Guarantor includes a charge for any Taxes, the Administrative Agent is authorized, in its reasonable discretion, to pay the amount thereof to the proper taxing authority for the account of the Borrower or such Subsidiary Guarantor and to charge such Loan Party therefor; provided , however , that neither the Administrative Agent nor Lenders shall be liable for any Taxes that may be due from the Borrower or any Subsidiary Guarantor or with respect to any Collateral. | 87Taxes
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Captions, numbering and headings of in this Assignment are for convenience of reference only and shall not be considered in the interpretation of this Assignment. | 48Headings
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All transfer taxes, excises, fees or other charges (including value added, sales, ad valorem, use or receipts taxes, but not including a tax on or measured by the income, net or gross revenues, business activity or capital of the Manager), or any increase therein, now or hereafter imposed directly or indirectly by Law, which the Manager is required to pay or incur in connection with the provision of Services hereunder (“ Tax ”), shall be passed on to Kimbell Operating as an explicit surcharge and shall be paid by Kimbell Operating in addition to any payment to cover expenses and costs related to Services provided. If Kimbell Operating submits to the Manager a timely and valid resale or other exemption certificate reasonably acceptable to the Manager and sufficient to support the exemption from Tax, then such Tax will not be added to the fee pursuant to Section 3.1 ; provided, however , that if the Manager is ever required to pay such Tax, Kimbell Operating will promptly reimburse the Manager for such Tax, including any interest, penalties and attorney’s fees related thereto. The Parties will cooperate to minimize the imposition of any Taxes. | 87Taxes
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The Company has filed all quarterly reports on Form 10-Q and all annual reports on Form 10-K required to be filed by the Company under Section 13 or 15(d) of the Exchange Act for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, in addition to all schedules, forms, statements and other documents filed with the Commission for the two years preceding the date hereof, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. | 43Financial Statements
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The execution, delivery, and performance by the Borrower of the Credit Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby (a) are within the Borrower’s power and authority, and (b) have been duly authorized by all necessary corporate action. | 10Authorizations
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Subject to the terms and conditions of this Agreement, Administrative Agent and the Required Lenders hereby waive any Event of Default that may have occurred under Section 8(d) of the Existing Loan Agreement as a result of the failure to comply with the covenant set forth in Section 7.14 of the Existing Loan Agreement for the fiscal quarter ending on March 31, 2017. The waiver set forth herein shall be limited precisely as written and relate solely to the noncompliance by the Amendment Parties with Section 7.14 of the Existing Loan Agreement (the “ Waived Provision ”) in the manner and to the extent described above, and nothing in this Amendment shall be deemed to (i) constitute a waiver of compliance by the Amendment Parties or the Loan Parties with respect to (x) the Waived Provision in any other instance or (y) any other term, provision or condition of the Loan Agreement or any other Loan Document; or (ii) prejudice any right or remedy that Administrative Agent or any Lender may now have or may have in the future under or in connection with the Loan Agreement or any other Loan Document. | 97Waivers
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Upon the terms and conditions set forth in this Agreement, the Company hereby employs Executive as President and Chief Executive Officer, and Executive accepts such employment. | 35Employment
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No consent, approval, or authorization of, or designation, or filing with, any Governmental Authority or any other person or entity is required on the part of Buyer in connection with the valid execution and delivery of this Agreement or the consummation of transactions contemplated hereby. | 22Consents
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The Executive understands and agrees that by entering into this Agreement, the Executive represents to the Company that the Executive’s performance hereunder will not breach any other agreement to which the Executive is a party and that the Executive has not, and will not during the term of the Executive’s employment with the Company, enter into any oral or written agreement scheduled to become effective while the Executive is still an employee of the Company that would be in conflict with any of the provisions of this Agreement or the Company’s policies. The Executive will not use or disclose to any person associated with the Company, any confidential or proprietary information belonging to any former employer or other third party with respect to which the Executive owes an obligation of confidentiality under any agreement or otherwise. The Company does not need and will not use such information and the Company will assist the Executive in any way possible to preserve and protect the confidentiality of proprietary information belonging to third parties. The Company also expects the Executive to abide by any obligations to refrain from soliciting any person employed by or otherwise associated with any former employer and suggests that the Executive refrain from having any contact with such persons until such time as any non-solicitation obligation expires. | 61No Conflicts
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This Agreement may be modified, amended, suspended or terminated, and any terms, representations or conditions may be waived, but only by a written instrument signed by each of the parties hereto or their successors in interest. No waiver hereunder shall constitute a waiver with respect to any subsequent occurrence or other transaction hereunder or of any other provision hereof. | 97Waivers
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This Agreement shall constitute the entire agreement between the parties hereof, with respect to the matters referred to herein; provided that this Agreement shall not alter, amend, or supersede, except as specifically provided in Paragraph 5, any agreement that includes the terms of any equity grant made to Executive prior to the date hereof or the Indemnification Agreement referenced in Paragraph 4(d), which by their terms survive the termination thereof. | 38Entire Agreements
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This Agreement shall be deemed to be the product of the joint drafting of the parties hereto and shall not be construed against any party. In the event an ambiguity or question of intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. | 23Construction
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Each Credit Party hereby irrevocably releases and forever discharges each Indemnitee of and from all damages, losses, claims, demands, liabilities, obligations, actions or causes of action whatsoever (each a “ claim ”) that such Credit Party may now have or claim to have against any Indemnitee on the date hereof, whether known or unknown, of every nature and extent whatsoever, for or because of any matter or thing done, omitted or suffered to be done or omitted by any of the Released Persons that both (a) occurred prior to or on the date hereof and (b) is on account of or in any way concerning, arising out of or founded upon the Credit Agreement or any other Loan Document, or Agent’s administration of and actions under the Credit Agreement or any other Loan Document (each, a “ Released Claim ”). | 74Releases
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As of the date hereof, and after giving effect to the terms of this Agreement, no Default or Event of Default exists. | 62No Defaults
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This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile or e-mail, which shall be deemed an original. | 26Counterparts
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The Asset Representations Reviewer will cooperate with and provide information to the Issuer regarding the Asset Representations Reviewer’s compliance with this Section 4.10. The Asset Representations Reviewer and the Issuer agree to modify this Section 4.10 as necessary for either party to comply with Applicable Law. | 60Modifications
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The Administrator is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems necessary or desirable for the administration of the Plan. The Administrator may correct any defect or supply any omission or reconcile any inconsistency in the Plan or Award agreement in the manner and to the extent the Administrator deems necessary or desirable, without the consent of any Participant. Any decision of the Administrator in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned (including, but not limited to, Participants and their beneficiaries and successors). | 55Interpretations
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Each Credit Party shall permit the Term Lenders and the Administrative Agent to visit and inspect any of the properties of any Credit Party accompanied by a representative of the Credit Party to the extent such representative does not interfere with such inspection, to examine the books of account of such Credit Party (and to make copies thereof and extracts therefrom), and to discuss the affairs, finances and accounts of such Credit Party with, and to be advised as to the same by, its and their officers, in each case at such reasonable times and intervals and with prior notice, as the Administrative Agent or any Term Lender may reasonably request; provided that such inspection rights shall be exercised no more frequently than annually if no Event of Default exists, no notice shall be required during the continuance of an Event of Default. In the event any Term Lender desires to exercise its rights hereunder, such Term Lender shall make a reasonable effort to do so contemporaneously with any inspection to be performed by the Administrative Agent. | 46General
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The Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions not otherwise prohibited hereunder and at prices and on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and its wholly owned Restricted Subsidiaries not involving any other Affiliate, (c) any transactions otherwise permitted hereby, (d) the issuance of Equity Interests of the Borrower to any employee, director, officer, manager, distributor or consultant (or their respective controlled Affiliates) of the Borrower or any of its Restricted Subsidiaries, and (e) compensation, salaries and employment agreements and arrangements (and expense reimbursement and indemnification arrangements for) to officers and directors of the Borrower and its Restricted Subsidiaries. | 91Transactions With Affiliates
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The representations and warranties set forth in this Section 3 shall survive the execution and delivery of this Agreement. | 85Survival
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Each Party shall disclose and make available to the other Party all material information controlled by such Party that is reasonably necessary for the other Party to perform its obligations and exercise its rights under this Article 6, including the preparation, filing, prosecution and maintenance of patents and patent applications pursuant to this Article 6. All such information shall be disclosed to the other Party reasonably promptly after it is first developed or learned or its significance is first appreciated. Without limiting the foregoing, each Party agrees to disclose and make available to the other Party all Alimera Improvements and pSivida Improvements, as applicable. Neither Alimera nor pSivida shall publicly disclose any Alimera Improvements before the Party responsible for filing and prosecuting such Improvements has an opportunity to make appropriate patent filings. Each Party agrees to cooperate with the other Party with respect to the preparation, filing, prosecution and maintenance of patents and patent applications pursuant to this Article 6. | 24Cooperation
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This Assignment and Assumption Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed the same instrument. This Assignment and Assumption Agreement may be executed and delivered via fax or scan which shall have the same full force and effect as an original. | 26Counterparts
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In the event that any of the provisions of this Agreement or portion thereof are held to be inoperative or invalid by any court of competent jurisdiction, then: (a) insofar as is reasonable, effect will be given to the intent manifested in the provisions held invalid or inoperative, and (b) the validity and enforceability of the remaining provisions will not be affected thereby. | 79Severability
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The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity, other than Tellurian, Total, Magellan and the Stockholders, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. | 13Binding Effects
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Each of Conduit Assignor, Committed Lender Assignor, Assignor Co-Agent, Conduit Assignee, Committed Lender Assignee and Assignee Co-Agent agrees that from time to time, at the Borrower’s expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or desirable to more fully effect the purposes of this Assignment and Acceptance Agreement. | 45Further Assurances
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Each party hereto shall take or cause to be taken such further actions as it is legally able to take, and shall execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments as may be reasonably required or requested by the other parties in order to effectuate fully the purposes, terms and conditions of this Agreement. | 45Further Assurances
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The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflict of law rules. | 47Governing Laws
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Capitalized terms not otherwise defined in this Restatement Agreement have the same meanings as specified in the Existing Credit Agreement. | 29Definitions
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Except as to withholding of any tax under the laws of the United States or any state or locality, no benefit payable at any time hereunder shall be subject in any manner to alienation, sale, transfer, assignment, pledge, attachment or other legal process, or encumbrance of any kind. Any attempt to alienate, sell, transfer, assign, pledge or otherwise encumber any such benefit, whether currently or thereafter payable hereunder, shall be void. For clarification and without limitation, this section 10.2 specifically forbids and makes void any purported assignment of benefits to an alternate payee through a domestic relations order, regardless of whether such domestic relations order would be a qualified domestic relations order under Section 414(p) of the Code or Section 206 of ERISA. | 7Assignments
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The parties acknowledge and agree that the covenants, terms and provisions contained in this Agreement constitute a personal employment contract and the rights and obligations of the parties hereunder cannot be transferred, sold, assigned, pledged or hypothecated, excepting that the Company may assign this Agreement in connection with a sale of the business, merger, consolidation, share exchange, sale of substantially all of the Company’s assets, or other reorganization, whether or not the Company is the continuing entity, provided that the assignee is the successor to the business and all, or substantially all, of the assets of the Company. | 7Assignments
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You will be entitled to reimbursement for all expenses incurred in the ordinary course of your job. Terms and conditions of the Company’s expense reimbursement regulations (as detailed in the CFAP as amended from time to time) will apply. | 41Expenses
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Each party’s obligations under this Section 5.03 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Credit Party, the termination of the Commitments and the repayment, satisfaction or discharge of all the Borrower Obligations and the Servicer’s obligations hereunder. | 85Survival
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This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding between each Grantor and the Agent relating to the Collateral and supersedes all prior agreements and understandings between any Grantor and the Agent relating to the Collateral. | 38Entire Agreements
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This Agreement and the documents and agreements referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto, whether verbal or in writing. There are no other written or verbal representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory between the parties. | 38Entire Agreements
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Subject to the terms and conditions hereof, the Company has authorized the issuance and sale of the Offered Shares (the “ Purchased Securities ”). | 77Sales
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The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Notes, the Warrants and the Warrant Shares and the reservation for issuance of the Warrant Shares) will not (i) result in a violation of the Certificate of Incorporation (as defined below) (including, without limitation, any certificate of designation contained therein), By-Laws (as defined below), certificate of formation, memorandum of association, articles of association, bylaws or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign, federal and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the “Principal Market ”) and including all applicable foreign, federal and state laws, rules and regulations (including, without limitation, any Israeli law, rule or regulation) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected. | 61No Conflicts
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All tax returns, reports and declarations relating to the Business or the Purchased Assets (collectively, “Tax Returns”) required by any Governmental Authority to be filed in connection with the properties, business, income, expenses, net worth or franchises of Seller relating to the Business have been timely filed, and all such Tax Returns are correct and complete in all material respects. All governmental taxes, charges or assessments and related deficiencies, interest and penalties (collectively, “Taxes”) due in connection with the Business or the Purchased Assets have been paid, other than Taxes which are not yet due or which, if due, are not yet delinquent, are being contested in good faith or have not been finally determined, and for which reserves have been established on the Acquisition Balance Sheet which are sufficient to cover the payment of all such Taxes. There are no Tax claims, audits or proceedings pending in connection with the Business or the Purchased Assets, and to Seller’s Knowledge there are no such threatened claims, audits or proceedings. There are not currently in force any extensions of time with respect to the dates on which any Tax Return was or is due to be filed by Seller, or any waivers or agreements for the extension of time for the assessment or payment of any Tax. With respect to the Business, Seller has withheld or collected from each payment made to each of the Business Employees (as hereinafter defined) and any other person or entity the amount of all Taxes required to be withheld or collected therefrom and Seller has paid the same when due to the proper Governmental Authorities. To Seller’s Knowledge, within the last three (3) years, no written claim in excess of twenty thousand dollars ($20,000) has been made by a Tax authority in any jurisdiction where Seller does not file a Tax Return that it is, or may be, subject to taxation in such jurisdiction. Seller is not liable for the Taxes of any other person as a transferee, successor, by contract, law, regulation, rule or otherwise or under Treasury Regulation Section 1.1502-6 or any other comparable statute, local or foreign statute, regulation or law. There are no Tax sharing agreements or other similar arrangement (whether written or oral) in effect that include Seller and Seller has no liability to any other person with respect to any previously terminated Tax sharing agreement or similar arrangement. | 87Taxes
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This Agreement shall terminate upon the earliest of (a) the Effective Time, (b) the termination of the Merger Agreement in accordance with its terms and (c) the mutual written agreement of the parties to terminate this Agreement (such earliest date being referred to herein as the “ Termination Date ”); provided that the provisions set forth in Sections 13 to 24 shall survive the termination of this Agreement; provided further that any liability incurred by any party as a result of a breach of a term or condition of this Agreement prior to such termination shall survive the termination of this Agreement. | 88Terminations
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The term of this Agreement shall commence on October 18, 2017 and shall continue in effect until terminated by either Party to this Agreement following ten (10) days advance written notice to the other Party (the “ Term ”) or such other amount of days as agreed to by the Parties in writing. | 89Terms
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No failure or delay on the part of any Purchaser in exercising any right, power or remedy pursuant to the Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. No provision of the Documents may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. Any waiver of any provision of the Documents and any consent by any Purchaser to any departure by the Company from the terms of any provision of the Documents shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances. | 63No Waivers
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All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “ New York Courts ”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding. | 47Governing Laws
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Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation of receipt, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice. | 65Notices
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The Company shall indemnify and hold harmless each member of the Committee and the Board and any employee or director of the Company or any Subsidiary to whom any duty or power relating to the administration of the Plan or any Award is delegated from and against any loss, cost, liability (including any sum paid in settlement of a claim with the approval of the Board), damage and expense (including reasonable legal and other expenses incident thereto) arising out of or incurred in connection with the Plan, unless and except to the extent attributable to such person’s fraud or willful misconduct. | 49Indemnifications
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Debtor will keep the Collateral in good order and repair, and will not use the same in violation of law or any policy of insurance thereon or permit any Collateral to be attached or otherwise affixed to any real estate so as to become a fixture under the law of the jurisdiction in which such real estate is located or to any goods not owned by Debtor. Debtor will pay promptly when due all taxes and assessments upon the Collateral or for its use or operation or upon this agreement. | 87Taxes
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On the Effective Date, the Borrowers shall have paid to the Administrative Agent, the Lead Arranger, the Collateral Agent and each Lender all costs, fees and expenses (including reasonable legal fees and expenses) and other compensation contemplated hereby payable to the Administrative Agent, the Lead Arranger, the Collateral Agent or such Lender to the extent then due. | 42Fees
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On or before the First Amendment Effective Date, Administrative Agent shall have received counterparts hereof duly executed by the Borrower, the Parent and the Lenders constituting at least the Required Lenders. | 26Counterparts
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The Committee shall certify in writing its determination and approval that the applicable performance goal or goals have been satisfied and the applicable Performance Level achieved. Those shares of restricted Stock that vest upon achievement of the applicable performance goals as determined by the Committee will become vested on the Vesting Date. The portion of the Award that does not otherwise vest in accordance with this Schedule 4 will be forfeited and all related rights with respect to all unvested shares of restricted Stock that are subject to the Award shall be forfeited by the Participant as of the Vesting Date. | 95Vesting
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Except as otherwise expressly provided herein, capitalized terms used in this Amendment shall have the meanings given in the Revolving Credit Agreement (after giving effect to this Amendment), and the rules of interpretation set forth in the Revolving Credit Agreement shall apply to this Amendment. | 29Definitions
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All terms used in this Amendment with an initial capital letter which are not otherwise defined herein shall have the meanings given to such terms in the Agreement. | 28Defined Terms
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When used herein, the following words shall have the meanings indicated below. Terms not defined herein shall have the meanings assigned to them in the State Street Salary Savings Program, as from time to time amended and in effect. | 29Definitions
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Section 5.16(a) of the Disclosure Schedule sets forth a list of each insurance policy (collectively, the “ Insurance Policies ”) currently owned or held by each of the Acquired Companies. No written notice of cancellation or termination of any Insurance Policy has been received by any Acquired Company, and all premiums due on the Insurance Policies have been paid. The Insurance Policies are in full force and effect and are valid and binding in accordance with their terms. There are no claims related to the business of the Acquired Companies pending under the Insurance Policies as to which coverage has been denied or disputed or in respect of which there is an outstanding reservation of rights. No Acquired Company is in default under, or has otherwise failed to comply with, in any material respect, the Insurance Policies. Section 5.16(b) of the Disclosure Schedule contains a list setting forth any and all claims, with reasonable particulars, made under any policies of insurance maintained by or for the benefit of the Acquired Companies over the past five (5) calendar years prior to the date hereof. | 51Insurances
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The financial statements included in each SEC Filing comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and present fairly, in all material respects, the consolidated financial position of the Company as of the dates presented and its consolidated results of operations and cash flows for the periods presented, subject in the case of unaudited financial statements to normal, year-end audit adjustments, and such consolidated financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”) (except as may be disclosed therein or in the notes thereto, and except that the unaudited financial statements may not contain all footnotes required by GAAP, and, in the case of quarterly financial statements, except as permitted by Form 10-Q under the 1934 Act). Except as set forth in the financial statements of the Company included in the SEC Filings filed prior to the date hereof, the Company has not incurred any liabilities, contingent or otherwise, except those incurred in the ordinary course of business, consistent (as to amount and nature) with past practices since the date of such financial statements, none of which, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. | 43Financial Statements
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In addition to such other rights of indemnification as they may have as members of the Board, members of the Committee or other persons who administer this Plan shall be defended and indemnified by the Company, to the extent permitted by law, on an after-tax basis against (i) all reasonable expenses (including attorneys’ fees) actually and necessarily incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with this Plan or any Bonus awarded hereunder and (ii) all amounts paid by them in settlement thereof (provided such settlement is approved by the Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim, investigation, action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct; provided, however, that within 30 days after the institution of such claim, investigation, action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at the Company’s expense to handle and defend the same. | 49Indemnifications
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The Arrangers shall have received (i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of ADI and the Company, in each case for the last three fiscal years to have been completed at least 90 days prior to the Closing Date, and (ii) U.S. GAAP unaudited consolidated balance sheets and related statements of income and cash flows of each of ADI and the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date (it being agreed that all such information referred to in subclauses (i) and (ii) of this clause (b) for all relevant periods ended on or prior to (A) for ADI, January 28, 2017 and (B) for the Company, January 1, 2017, has been received). | 43Financial Statements
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Any notice to the Company provided for in this instrument shall be addressed to the Company in care of the General Counsel at the Company’s corporate headquarters, and any notice to the Participant shall be addressed to such Participant at the current address shown on the payroll records of the Employer, or to such other address as the Participant may designate to the Employer in writing. Any notice shall be (i) delivered by hand, (ii) delivered by a national overnight courier or delivery service, (iii) enclosed in a properly sealed envelope addressed as stated above, registered and deposited, postage prepaid, in a post office regularly maintained by the United States Postal Service, or (iv) in the case of notices by the Company to the Participant, such notices may be delivered by e-mail or other electronic means (with confirmation of receipt to be made by any oral, electronic or written means). | 65Notices
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Seller is the sole record and beneficial owner of the Purchased Interests, free and clear of any and all Encumbrances (other than those existing under applicable federal or state securities Laws), and such Purchased Interests were issued in full compliance with applicable securities Laws. Seller has good and marketable title to the Purchased Interests and has the power and authority to sell, transfer, assign and deliver the Purchased Interests, and such delivery will convey to Buyer at the Closing good and valid title to such Purchased Interests free and clear of any and all Encumbrances (other than those existing under applicable federal or state securities Laws). | 90Titles
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In addition to other terms which may be defined herein (including, without limitation, in the preamble and recitals to this Agreement, terms used, but not defined, herein shall have the meanings given such terms in the Credit Agreement. | 29Definitions
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Except for the Indemnification Agreement dated December 9, 2013 and the amendments to the stock option agreements referred to in Section 5.8, this Agreement contains the entire agreement of the parties relating to the subject matter hereof, and the parties hereto have made no agreements, representations or warranties relating to the subject matter of this Agreement that are not set forth otherwise herein. This Agreement supersedes any and all prior agreements, written or oral, between Employee and Employer relating to the subject matter hereof. Any such prior agreements are hereby terminated and of no further effect, and Employee, by the execution hereof, agrees that any compensation provided for under any such agreements is specifically superseded and replaced by the provisions of this Agreement. | 38Entire Agreements
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Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article VI, and subject to the satisfaction or waiver of the conditions set forth in Article V, the closing of the Stock Purchase (the “Closing”) will take place electronically no later than at 5:00 PM EST on the date seventy (70) days from the date of this Agreement (the “Closing Date”), unless another date, time or place is agreed to in writing by the parties hereto. | 18Closings
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A waiver by any party of any of the terms and conditions of this Agreement in any one instance shall not be deemed or construed to be a waiver of the term or condition for the future, or of any subsequent breach thereof, or of any other term or condition thereof. Any party may waive any term, provision, or condition included for the benefit of that party. Any and all waivers shall be in writing. | 97Waivers
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This Agreement shall not constitute an employment contract between the Company and the Participant and shall not be construed as conferring on the Participant the right to continue in the employ of the Company. The Participant, his beneficiary and his surviving spouse shall have no right to assign, transfer, pledge, encumber or otherwise anticipate any payment or interest under the Plan or this Agreement. The Participant acknowledges that he, his surviving spouse and beneficiary shall have no title to, or secured interest in, any assets the Company sets aside, earmarks or otherwise segregates (including in any trust) for the satisfaction of its liabilities under the Plan or this Agreement. | 46General
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Consultant may terminate this Agreement upon giving the Company seven (7) days’ prior written notice of such termination pursuant to Section 10 of this Agreement. The Company may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement. | 88Terminations
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Each Group Member has filed or caused to be filed all federal, state and other material tax returns that, to the knowledge of the Borrower, are required to be filed and has paid or made provision for the payment of all taxes shown to be due and payable on said returns or on any material assessments made against it or any of its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority other than (a) any tax the amount or validity of which is currently being contested in good faith by appropriate actions and with respect to which reserves in conformity with generally accepted accounting principles in the United States have been provided on the books of the relevant Group Member, and (b) any tax returns or taxes to the extent that the failure to file such tax returns or pay such taxes could not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed, and, to the knowledge of the Borrower, no material claim is being asserted, with respect to any such material tax, fee or other charge. | 87Taxes
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Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (i) when delivered personally; (ii) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (iii) when sent by electronic transmission, upon written confirmation of receipt by the receiving party; (iv) five business days after being sent by registered or certified mail, return receipt requested, postage prepaid; or (v) two business days after deposit with a private industry express courier, with written confirmation of receipt, addressed to the other party at its address as shown below beneath its signature, or to such other address as such party may designate in writing from time to time to the other party. | 65Notices
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Unless a leave policy approved by the Administrator provides otherwise or it is otherwise required by Applicable Law, vesting of Awards granted under the Plan will continue only for Participants on an approved leave of absence. | 95Vesting
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Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Pledge Agreement, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower and Lender or any other parties pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action. | 60Modifications
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Registry Operator is a corporation, duly organized, validly existing and in good standing under the laws of Delaware, and Registry Operator has all requisite power and authority to enter into this Agreement. All corporate approvals and actions necessary for the entrance by Registry Operator into this Agreement have been obtained and this Agreement has been duly and validly executed and delivered by Registry Operator. | 66Organizations
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If, within twelve months following a Change in Control, (i) a Participant is terminated by the Company or an employing Affiliate (that is not a Joint Venture) without Cause or (ii) such Participant resigns from the Company or an employing Affiliate (that is not a Joint Venture) for Good Reason, the unvested portion of any then outstanding Stock Option shall vest and become exercisable. | 17Change In Control
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At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith ("Documents"), including, without limitation, reasonable attorneys' and consultants' fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer. | 41Expenses
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If, at the time of the receipt of a notice of the commencement of a Proceeding pursuant to Section 7(a) above, the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all reasonable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such D&O Insurance policies. | 51Insurances
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During the Employment Period, Executive shall be eligible for paid vacation of five weeks per calendar year (pro-rated for any partial year). | 93Vacations
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All prior understandings and agreements between the parties are merged within this Lease, which alone fully and completely sets forth the understanding of the parties; and this Lease may not be changed or terminated orally or in any manner other than by an agreement in writing and signed by the party against whom enforcement of the change or termination is sought. | 52Integration
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This Agreement may be executed and delivered in counterparts (including by facsimile or pdf’) which, when taken together, shall constitute one and the same agreement of the parties. | 26Counterparts
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Except for the litigation disclosed under the headings “Environmental Matters” and “Warranty Liability” in Allegion plc’s 2016 Form 10-K, there is no action, suit or proceeding pending against, or to the knowledge of any Borrower threatened against or affecting the Borrowers or any of their respective Subsidiaries before any court or arbitrator or any Governmental Authority or governmental official in which there is a reasonable possibility of an adverse decision that (i) could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) in any manner draws into question the validity of this Agreement or the Notes. | 58Litigations
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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 knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option or other equity award agreements under any equity incentive plan of the Company. | 91Transactions With Affiliates
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The specific terms defined in this Article include the plural as well as the singular. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision, and Article, Section, Schedule and Exhibit references, unless otherwise specified, refer to Articles and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms used herein without definition shall have the respective meanings assigned to such terms in the Sale and Servicing Agreement dated as of January 11, 2017, by and among AFS SenSub Corp., as Seller, AmeriCredit Financial Services, Inc., in its individual capacity and as Servicer, AmeriCredit Automobile Receivables Trust 2017-1, as Issuer, and The Bank of New York Mellon, as Trust Collateral Agent. | 46General
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The representations and warranties of the Shareholders contained herein shall not survive the closing of the transactions contemplated hereby and by the Merger Agreement. | 98Warranties
|
Borrower agrees to deliver and to cause each of its Subsidiaries to deliver, to further secure the Obligations whenever requested by Administrative Agent in its sole and absolute discretion, deeds of trust, mortgages, chattel mortgages, security agreements, financing statements and other Security Documents in form and substance satisfactory to Administrative Agent for the purpose of granting, confirming, and perfecting first and prior liens or security interests in any real or personal property which is at such time Collateral or which was intended to be Collateral pursuant to any Security Document previously executed and not then released by Administrative Agent. | 45Further Assurances
|
The Administrator may grant Restricted Stock, or the right to purchase Restricted Stock, to any Service Provider, subject to the Company’s right to repurchase all or part of such shares at their issue price or other stated or formula price from the Participant (or to require forfeiture of such shares) if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant to Service Providers Restricted Stock Units, which may be subject to vesting and forfeiture conditions during the applicable restriction period or periods, as set forth in an Award Agreement. The Administrator will determine and set forth in the Award Agreement the terms and conditions for each Restricted Stock and Restricted Stock Unit Award, subject to the conditions and limitations contained in the Plan. | 46General
|
This Warrant shall be governed by and interpreted in accordance with the laws of the State of Nevada, without giving effect to the principles thereof regarding the conflict of laws. The Company and, by accepting this Warrant, the Holder, each irrevocably (a) consent to and expressly submit to the exclusive personal jurisdiction of any state or federal court sitting in San Diego County, Nevada in connection with any dispute or proceeding arising out of or relating to this Warrant, (b) agree that all claims in respect of any such dispute or proceeding may only be heard and determined in any such court, (c) expressly submit to the venue of any such court for the purposes hereof, and (d) waive any claim of improper venue and any claim or objection that such courts are an inconvenient forum or any other claim or objection to the bringing of any such proceeding in such jurisdictions or to any claim that such venue of the suit, action or proceeding is improper. The Company and, by accepting this Warrant, the Holder, each hereby irrevocably consent to the service of process of any of the aforementioned courts in any such proceeding by the mailing of copies thereof by reputable overnight courier (e.g., FedEx) or certified mail, postage prepaid, to such party’s address as provided for herein, such service to become effective ten (10) calendar days after such mailing. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY. | 47Governing Laws
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Each of this Agreement and (unless PFLLC shall have been terminated as a Borrower hereunder pursuant to Section 9.16) the Support Agreement or, if PICA shall have executed and delivered the PICA Assumption Agreement or the PICA Guarantee Agreement, the PICA Assumption Agreement or the PICA Guarantee Agreement, as applicable, constitutes a valid and binding agreement of each Obligor which is a party thereto and the Notes of each Borrower, when executed and delivered in accordance with this Agreement at the request of a Bank, will constitute valid and binding obligations of such Borrower. | 13Binding Effects
|
As of the Effective Date, there is no Proceeding pending or, to the Knowledge of the Majority Member, threatened in writing, to which the Majority Member is a party, in any such case at law or in equity before any Governmental Authority or arbitral body against or affecting the Majority Member which, individually or in the aggregate, would have a Majority Member Material Adverse Effect. The Majority Member is not subject to any judgment, decree, injunction, rule or order of any Governmental Authority or any arbitrator that prohibits the consummation of the Transactions or would, individually or in the aggregate, have a Majority Member Material Adverse Effect. | 58Litigations
|
Neither this Note nor any interest herein shall be assigned, transferred, pledged or otherwise disposed of, through liquidation or otherwise (any of the foregoing, a “ Transfer ”), in whole or in part, by Maker without the express prior written consent of Holder. Any attempted assignment of this Note by Maker in violation of this restriction shall be void. | 7Assignments
|
Wherever used in this Agreement the following terms shall have the meanings set forth below. | 28Defined Terms
|
This Restricted Share Unit Agreement shall be governed by and construed according to the laws of Bermuda. | 47Governing Laws
|
The Preferred Unit Purchaser is duly organized and validly existing as a limited partnership and in good standing under the Laws of its state of formation, with all necessary power and authority to own properties and to conduct its business as currently conducted. | 40Existence
|
From and after the Closing Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Closing Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Closing Date. | 68Payments
|
Subject to the terms and conditions of the Plan and this Agreement, and except as provided in §§3(b), 3(c), 3(d) and 3(e) of this Agreement, one-third (1/3) of the Shares awarded hereunder shall vest and shall no longer be subject to a risk of forfeiture on each of the first, second and third year anniversaries of the date hereof provided that the Grantee has been continuously employed by the Company, or any subsidiary thereof, from the date hereof through the then-applicable anniversary date. | 46General
|
Every notice or other communication relating to this Agreement between the Company and the Participant shall be in writing, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered to the Company at its principal executive office, to the attention of the Company Secretary, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at the Participant’s last known address, as reflected in the Company’s records. Notwithstanding the above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and communicated to the Participant from time to time. | 65Notices
|
All notices, requests, demands, claims and other communications under this Agreement must be in writing. Any notice, request, demand, claim or other communication under this Agreement will be deemed duly given (i) two (2) business days after such notice is sent by registered or certified mail, return receipt requested, postage prepaid or (ii) immediately after such notice is sent via email, in each case, addressed to the intended recipient as follows: if the Company, 11601 Wilshire Blvd, Suite 1100, Los Angeles, CA 90025, attention: Rick Anderson ([email protected]) and Susan Etzel ( [email protected] ) and if to Purchaser, at the address set forth on the signature page to this Agreement, or any other address applicable to Purchaser if the Company has been given notice of such change of address in accordance with this Section 5(g). Any party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Agreement. | 65Notices
|
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile or photocopies of signatures may be accepted as originals. | 26Counterparts
|
It is understood that this Agreement is not effective and binding upon any of the parties hereto until executed and delivered by each of the parties hereto. | 34Effectiveness
|
The provisions of this 2017-2 Servicing Supplement and the 2017-2 Servicing Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. | 13Binding Effects
|
No Governmental Consent is required in connection with the execution and delivery by Buyer of this Agreement or any of the Transaction Documents to which it is a party or the performance by Buyer of its obligations hereunder or thereunder (excluding Governmental Consents, if any, which Seller is required to obtain or make, as to which no representations or warranties are made). | 22Consents
|
You are eligible to participate in the benefits provided by the Company to its employees. Where any particular benefit is governed by a formal plan document, your eligibility and coverage will be determined by such document, and the Company may change its benefit offerings from time to time in its discretion to meet its business needs. The Company retains the right to change, add or cease any particular benefit. | 12Benefits
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