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This Lease shall be construed, applied and enforced in accordance with the laws of the State of Oregon. | 4Applicable Laws
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The Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to purchase the Shares. The Purchaser is relying on his or her own business judgment and knowledge and the advice of his or her own counsel, tax advisors and other advisors, regarding the risks of an investment in the Company, in making the decision to purchase the Shares. The Purchaser, either alone or with his or her advisors, has sufficient knowledge and experience in business and financial matters to evaluate the merits and risks of the purchase of the Shares and has the capacity to protect his or her own interests in connection with such purchase. In furtherance of the foregoing, the Purchaser represents and warrants that (i) no representation or warranty, express or implied, whether written or oral, as to the financial condition, results of operations, prospects, properties or business of the Company Group or as to the desirability or value of an investment in the Company has been made to the Purchaser by or on behalf of the Company Group, and (ii) the Purchaser will continue to bear sole responsibility for making his or her own independent evaluation and monitoring of the risks of his or her investment in the Company. The Purchaser is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder (the “ Securities Act ”). | 76Representations
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In addition to any provisions specified in this Agreement as surviving under the applicable circumstances, the following provisions shall survive: Articles 6, 10 (to the extent any reimbursement of any shared costs remains outstanding), 11, 12, 13, 14, 15, 16, 18, 19, 20, 21 and Clauses 5.4.2, 7.4, 10.2.6, 10.2.7, 17.6, 17.7, and 17.8. In addition to those provisions specifically referenced in this Clause 17.8, those provisions which by their nature are intended to survive, as well as any other provisions necessary to interpret or implement any other surviving provisions (including, to the extent applicable, the definitions in Article 1), shall survive. | 85Survival
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Subject to the limitations stated above, this Agreement shall be binding upon and inure to the benefit of the parties’ respective heirs, legal representatives successors and assigns. | 13Binding Effects
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The Confidentiality provisions of this Agreement will continue for a period of five (5) years after the Effective Date of this Agreement. | 85Survival
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Company and any endorsers, guarantors and sureties of this Note hereby waive diligence, demand, presentment, notice of nonpayment, protest and notice of protest and expressly agree that this Note and any payment hereunder may be renewed, modified or extended from time to time and at any time and consent to the acceptance or release of security for this Note or a release of any party or guarantor, all without in any way affecting their liability and waive the right to plead any and all statutes of limitations as a defense to any demand on this Note, or on any guaranty thereof, or to any agreement to pay the same to the full extent permissible by law. | 97Waivers
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The Lenders and the Administrative Agent shall have received all fees required to be paid on or prior to the Closing Date, and all expenses required to be paid on the Closing Date for which reasonably detailed invoices have been presented (including the reasonable, fees and expenses of legal counsel to the Administrative Agent) to the Company Borrower at least three Business Days prior to the Closing Date. | 42Fees
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Each of the Company and the Option Holders will bear their own costs and expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal counsel and accountants. The Company shall be responsible for the fees of its transfer agent; stamp taxes and all The Depository Trust Company fees associated with the issuance of the Co-Investment Securities and the securities issuable upon exercise of the Co-Investment Warrants. | 41Expenses
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Except as otherwise provided in this Agreement, each Party to this Agreement will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement and the transactions contemplated by this Agreement, including all fees and expenses of its agents and representatives. If any Party hereto institutes a proceeding to enforce such Party’s rights in accordance with the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable expenses, including attorneys’ fees, in connection with any such action. | 41Expenses
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No Default or Event of Default shall have occurred which is continuing, and no Borrowing Base Deficiency shall then exist, in each case, before and after giving effect to the amendments to the Credit Agreement contained in Section 1 hereof and the redetermination of the Borrowing Base contained in Section 2 hereof. | 62No Defaults
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The Borrower shall apply, concurrently with the making of the Incremental Term A-3 Facility Loans, the proceeds of the Incremental Term A-3 Facility Loans and the New Senior Notes, without differentiation, to (a) repay the Borrower’s existing Senior Unsecured Notes, (b) repay the Term A-3 Facility Loans held immediately prior to the effectiveness of this Fourth Amendment by certain non-consenting Lenders, (c) repay outstanding revolving loans under the Revolving Facility to the extent of available proceeds and (d) pay fees and expenses in connection with the Transactions. | 92Use Of Proceeds
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The Company and each of the Participating Employers will indemnify and hold harmless the Committee and each member, and each person to whom the Committee has delegated responsibility under this Article XI (each an “Other Person”), from and against any and all losses, costs, liabilities or expenses that may be imposed upon or incurred by them in connection with or resulting from any claim, action, suit, or proceeding to which any member of the Committee or such Other Person is or may be a party or may be involved by reason of any action taken or failure to act under the Plan, or for any other reason, and from and against any and all amounts paid by the members of the Committee (or any of them) or such Other Person or Persons in settlement (if with the Company’s approval) of, or paid by them in satisfaction of a judgment in, any such action, suit or proceeding and from and against any other joint or several liability for their acts and omissions and for the acts and omissions of their duly appointed agents in the administration of the Plan, except for their own willful breach of fiduciary duty or willful misconduct. | 49Indemnifications
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The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of any provision of the Articles of Incorporation or Bylaws of Acquiring Company or of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Target Company or its properties or assets except for any such conflict or violation, which when taken together with all other conflict or violation, is not likely to have a Material Adverse Effect. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental entity is required by or with respect to Acquiring Company in connection with the execution and delivery of this Agreement by Acquiring Company, or the consummation by Acquiring Company of the transactions contemplated hereby. | 5Approvals
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The Company will use the proceeds from the sale of the Common Shares as described in the Prospectus Supplement, but not, directly or indirectly, for (i) except as set forth on Schedule 4(g), the satisfaction of any indebtedness of the Company or any of its Subsidiaries, (ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement of any outstanding litigation. | 92Use Of Proceeds
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The headings of the paragraphs of this Agreement have been inserted for convenience of reference only and shall in no way restrict or modify any of the terms or provisions hereof. | 48Headings
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This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes the Prior Agreements as well as all other prior agreements between the parties concerning such subject matter; provided that the Restrictive Covenant Agreement is expressly preserved and incorporated by reference herein. | 52Integration
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The Grant Notice specifies the Performance Goals required to be attained during the Performance Period for the Performance Units to vest. The Award shall vest on the date the Company’s Compensation Committee (the “Committee”) certifies attainment of the Performance Goals set forth in the Grant Notice have been attained provided that the Participant is actively employed by the Company or an Affiliate on the measurement date as of which the Performance Goal is certified or such earlier date set forth in the Grant Notice. For purposes of this Award Agreement, an “Affiliate” of the Company is an individual or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company. | 95Vesting
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All tax returns and tax reports of the Loan Parties required by law to have been filed have been duly filed or extensions in respect thereof have been obtained, and all taxes, assessments and other governmental charges or levies (other than those presently payable without penalty and those currently being contested in good faith for which adequate reserves have been established) upon any Loan Party (or any of its properties) which are due and payable and for which the failure to pay could reasonably be expected to have a Material Adverse Effect have been paid. The charges, accruals and reserves on the books of the Loan Parties in respect of U.S. Federal income tax for all periods are adequate in the opinion of Borrower. | 87Taxes
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Except as provided below, Restricted Stock Units subject to this Award will vest in substantially equal installments and be immediately settled on the first, second and third anniversary of the Grant Date, subject to your continued employment with the Company and/or a Subsidiary through each relevant vesting date. If you experience a Termination of Employment before full (100%) vesting, you will forfeit the unvested portion of Restricted Stock Units. If, however, you experience a Termination of Employment due to: (A) Retirement (as defined in the Plan, you attained age 60 and complete at least 5 years of service with the Company and/or a Subsidiary as of your Termination of Employment date) on or after the six (6) month anniversary of the Grant Date; (B) your death or Disability; or (C) a Change in Control Termination or Termination of Employment as a result of a Divestiture or Outsourcing Agreement, Restricted Stock Units subject to this Award will become vested in accordance with the provisions of Section 4, 5 or 6, as applicable. | 95Vesting
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Except as provided in Section 3 above and clause (i) of this Section 12 , this Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. Without limiting the foregoing, if, immediately prior to the execution of this Agreement by the Company and Indemnitee, Indemnitee and the Company were parties to a separate indemnification agreement (a “ Prior Agreement ”), this Agreement shall supersede and replace the Prior Agreement in its entirety. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party. | 38Entire Agreements
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No Debtor has any registered Patents, Patent Licenses, registered Trademarks, Trademark Licenses, registered Copyrights and Copyright Licenses which have not been previously disclosed in writing to Bank, or are not set forth on Schedule 3 attached hereto, which sets forth the information required by Section 3.3(d) of the Security Agreement for such previously undisclosed Intellectual Property Collateral. | 53Intellectual Property
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This offer letter and the documents referred to in it, including the Employee Invention Assignment and Confidentiality Agreement, constitute our entire agreement and understanding with respect to the terms and conditions of this offer and your employment with Zynga, and supersede any and all prior understandings and agreements, whether oral or written, between or among you and Zynga with respect to these subjects. If any term in this offer letter is unenforceable in whole or in part, the remainder shall remain enforceable to the extent permitted by law. | 38Entire Agreements
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The Table of Contents, Cross Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. | 48Headings
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(i) Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, including all Environmental Laws, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, and (ii) maintain in effect and enforce in all material respects policies and procedures designed to promote compliance by the Credit Parties, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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This Agreement and each Warrant issued hereunder shall be deemed to be a contract made under the Laws of the State of New York and for all purposes shall be governed by and construed in accordance with the Laws of such State. Each party hereto consents and submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and of the U.S. federal courts located in the Southern District of New York in connection with any action or proceeding brought against it that arises out of or in connection with, that is based upon, or that relates to this Agreement or the transactions contemplated hereby. In connection with any such action or proceeding in any such court, each party hereto hereby waives personal service of any summons, complaint or other process and hereby agrees that service thereof may be made in accordance with the procedures for giving notice set forth in Section 9.2 hereof. Each party hereto hereby waives any objection to jurisdiction or venue in any such court in any such action or proceeding and agrees not to assert any defense based on forum non conveniens or lack of jurisdiction or venue in any such court in any such action or proceeding. | 47Governing Laws
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Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in conjunction with the processing and documentation of any assignment, master subletting or management arrangement, including reasonable attorneys’ or other consultants’ fees whether or not such assignment, master sublease or management agreement is ultimately consummated or executed. | 25Costs
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The Company represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Executive represents and warrants that Executive has the capacity to act on Executive’s own behalf and on behalf of all who might claim through Executive to bind them to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein. | 9Authority
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This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to conflict-of-laws rules. | 47Governing Laws
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The Company shall cooperate in good faith with the Indemnitee and use its best efforts to ensure that, to the fullest extent permitted by applicable law, the Bylaws and the terms of this Agreement, the Indemnitee is indemnified and/or reimbursed for Expenses described herein and receives the Expense Advance. | 24Cooperation
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This Agreement and the rights and obligations hereunder shall not be assignable or transferable without the prior written consent of the Company. Any instrument purporting to make an assignment in violation of this Section 9.7 shall be void and of no effect. | 7Assignments
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To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three Business Days unless the Administrative Agent and the Issuing Bank shall otherwise agree) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank's standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) (x)the aggregate undrawn amount of all outstanding Letters of Credit issued by the Issuing Bank at such time plus (y) the aggregate amount of all LC Disbursements made the Issuing Bank that have not yet been reimbursed by or on behalf of the Borrower at such time shall not exceed its Letter of Credit Commitment, (ii) no Lender's Revolving Credit Exposure shall exceed its Commitment and (iii) the Total Revolving Credit Exposure shall not exceed the total Commitments. The Borrower may, at any time and from time to time, reduce the Letter of Credit Commitment of any Issuing Bank with the consent of such Issuing Bank; provided that the Borrower shall not reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such reduction, the conditions set forth in clauses (i) through (iii) above shall not be satisfied. | 2Amendments
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Schedule 4.m. attached hereto contains the following financial statements (the “ Financial Statements ”): (i) true, complete and correct copies of the balance sheets, statements of income and statements of cash flows for the years 2014, 2015 and 2016, and (ii) a true, complete and correct copy of the unaudited balance sheet as of March 31, 2017 (the “ Base Balance Sheet ”) and statement of income and statement of cash flow for the first three (3) months of 2017. Each Financial Statement (including the notes thereto), has been prepared from the books and records of the Company and in accordance with United States generally accepted accounting principles consistently applied, and fairly presents in all material respects the financial condition of the Company as of the dates, and for the periods, indicated thereon. There has been no fraud or intentional or willful misconduct by any Person in connection with the recordation, maintenance or preparation of the Financial Statements, the Base Balance Sheet or any other financial documents, record or information from which such statements were derived. | 43Financial Statements
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In the event a dispute arises concerning the performance of this Indemnity, the prevailing party in such dispute shall be awarded all reasonable costs and expenses (including reasonable attorneys’ fees) actually incurred by the prevailing party in enforcing, defending or establishing its rights hereunder. | 37Enforcements
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If any of the terms or provisions of this Plan, or awards made under this Plan, conflict with the requirements of Section 162(m) or Section 422 of the Code with respect to awards subject to or governed by Section 162(m) or Section 422 of the Code, then such terms or provisions shall be deemed inoperative to the extent they so conflict with the requirements of Section 162(m) or Section 422 of the Code. With respect to an Incentive Stock Option, if this Plan does not contain any provision required to be included herein under Section 422 of the Code (as the same shall be amended from time to time), such provision shall be deemed to be incorporated herein with the same force and effect as if such provision had been set out herein. | 79Severability
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This Agreement is, and each other Loan Document when delivered by any Loan Party will be, duly executed and delivered by each Loan Party that is a party thereto and does or will constitute the legal, valid and binding obligation of each such Loan Party enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by general principles of equity and bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by moratorium laws from time to time in effect. | 36Enforceability
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SUBJECT TO THE ARBITRATION PROVISIONS OF SECTION 8.16 BELOW AS TO ALL DISPUTES AND MATTERS THAT SHALL BE SUBMITTED TO ARBITRATION, AT THE OPTION OF LENDER, THIS AGREEMENT, THE REVOLVING NOTE AND THE LOAN DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING IN MINNEAPOLIS OR ST. PAUL, MINNESOTA; AND THE BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, LENDER AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE. | 21Consent To Jurisdiction
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At any time prior to the Closing Date, the parties hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered pursuant hereto and (c) waive compliance by the other party with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of the party against which such waiver or extension is to be enforced. Waiver of any term or condition of this Agreement by a party shall not be construed as a waiver of any subsequent breach or waiver of the same term or condition by such party, or a waiver of any other term or condition of this Agreement by such party. | 97Waivers
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This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts and transmitted by facsimile to the other parties, each of which when so executed and delivered by facsimile shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Agreement may be executed by each party on separate copies, which copies, when combined so as to include the signatures of all parties, shall constitute a single counterpart of this Agreement. | 26Counterparts
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The Applicant shall have used reasonable best efforts to ensure that the Administrative Agent shall have received evidence in form and substance reasonably satisfactory to it that all of the requirements of Section 7.5 of this Agreement shall have been satisfied. The Applicant shall have used reasonable best efforts to cause the Administrative Agent and the other Secured Parties to have been named as additional insured with respect to liability policies and the Collateral Agent to have been named as loss payee with respect to the property insurance maintained by the Applicant and the Subsidiary Guarantors. | 51Insurances
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TRLWT Seller makes the following representations and warranties for the benefit of the Purchaser, the Administrative Agent, the Collateral Agent and the Lenders, on which the Purchaser relies in acquiring the Railcars, related Leases and Related Assets Conveyed by TRLWT Seller hereunder. Such representations are made as of each Delivery Date and at such other times specified below. | 76Representations
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The provisions of this Plan shall bind and inure to the benefit of each Participating Employer and its successors and assigns. The term successors as used herein shall include any corporate or other business entity which shall, whether by merger, consolidation, purchase or otherwise acquire all or substantially all of the business and assets of a Participating Employer, and successors of any such corporation or other business entity. | 84Successors
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The provisions of this Guaranty Agreement are independent of and separable from each other. If any provision hereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof, but this Guaranty Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. | 79Severability
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This Eighth Amendment will become effective only upon its full execution and delivery by Landlord and Tenant. This Eighth Amendment contains the parties’ entire agreement regarding the subject matter covered herein, and supersedes all prior correspondence, negotiations, and agreements, if any, whether oral or written, between the parties concerning such subject matter. There are no contemporaneous oral agreements, and there are no representations or warranties between the parties not contained in this Eighth Amendment. In all respects, except as specifically amended hereby, the terms and conditions of the Lease remain in full force and effect and unabated and the Lease, as amended by this Eighth Amendment, will be binding upon and will inure to the benefit of the parties hereto, their successors and permitted assigns. | 38Entire Agreements
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This Agreement will be governed by and construed in accordance with the law of the State of New York applicable to contracts made and to be performed entirely within that State. | 47Governing Laws
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The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan and any Award shall be determined in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. | 47Governing Laws
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This Agreement shall not be assigned or delegated by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties hereto, except this Agreement shall be assignable without any consent to a permitted transferee under Section 8(a) . Any assignment in violation of this Section 10(g) shall be null and void. Subject to the preceding sentence, but without relieving any party hereto of any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. | 7Assignments
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This letter agreement and Exhibit A constitute the complete agreement between you and NVIDIA, contains all of the terms of your employment with NVIDIA and supersedes any prior agreements, representations or understandings (whether written, oral or implied) between you and NVIDIA. This letter agreement may not be amended or modified, except by an express written agreement signed by both you and NVIDIA’s head of human resources. | 38Entire Agreements
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The Company will not, nor will it permit any Subsidiary to, sell or transfer any property in order to concurrently or subsequently lease as lessee such or similar property unless (i) the related sale is permitted under Section 7.3(C) , (ii) any related Investment is permitted under Section 7.3(E) , (iii) no Default or Unmatured Default shall have occurred and be continuing as of the date of such transaction or would result therefrom and (iv) the Property subject to such sale does not constitute Restricted Collateral. | 77Sales
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This Agreement will be governed, construed, and interpreted under the laws of the State of Florida and, where applicable, Federal law, without giving effect to principles of conflict of law thereof. Except as provided under paragraph 3 of Exhibit 2 , any dispute or controversy arising under or in connection with this Agreement (including any exhibit to this Agreement) shall be settled exclusively by arbitration in the City of Jacksonville, Duval County, Florida in accordance with the Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association. Judgement may be entered on the arbitrator’s award in any court having jurisdiction. Except as provided in paragraph 10 of Exhibit 2 , each party shall bear its own fees and costs in relation to any such action and the parties shall evenly share the fees of the American Arbitration Association, provided, that if CSX does not substantially prevail in any arbitration proceeding, it shall pay and reimburse the full amount of the fees of the American Arbitration Association. | 47Governing Laws
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Any determination by any court of competent jurisdiction of the invalidity of any provision of this Agreement that is not essential to accomplishing its purposes shall not affect the validity of any other provision of this Agreement, which shall remain in full force and effect and which shall be construed as to be valid under applicable law. | 79Severability
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Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein other than as a result of the gross negligence or willful misconduct of Lender. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment of the Debt. | 15Brokers
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Any mention of “Articles,” “Sections” and subsections thereof, unless stated specifically to the contrary, refers to Articles, Sections or subsections in the Plan. Headings of Articles, Sections and subsections are for convenient reference. The headings are not part of the Plan and are not to be considered in its construction. All references to statutory sections shall include the section as amended from time to time. | 23Construction
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There are no actions, suits, investigations, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries (excluding the Excluded Subsidiary) that would reasonably be expected to have a Material Adverse Effect. | 58Litigations
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This Agreement and any documents or instruments delivered pursuant hereto or in connection herewith shall be construed without regard to the identity of the person who drafted the various provisions of the same. Each and every provision of this Agreement and such other documents and instruments shall be construed as though all of the parties participated equally in the drafting of the same. Consequently, the parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting party shall not be applicable either to this Agreement or such other documents and instruments. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement, all references to “dollars” or “$” are to United States dollars. References to a party or to the parties to this Agreement refers to the Parent and the Stockholders, individually or collectively, as the case may be. | 55Interpretations
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If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, that determination will not impair or affect the validity, legality, or enforceability of the remaining provisions, because each provision is separate, severable, and distinct. | 79Severability
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation. | 67Participations
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Except as otherwise expressly provided in this Agreement, all expenses incurred by Seller in connection with or related to the authorization, preparation, or execution of this Agreement, and the Exhibits and Schedules hereto and thereto, and all other matters related to the Closing, including all fees and expenses of counsel, accountants and financial advisers employed by Seller, shall be borne solely and entirely by Seller, and all such expenses incurred by Purchaser shall be borne solely and entirely by Purchaser. | 41Expenses
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Any provision of this Fifth Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. | 79Severability
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The Loan Documents exclusively and completely state the rights and obligations of Lender and Borrower with respect to the Loan. No modification, variation, termination, discharge, abandonment or waiver of any of the provisions or conditions of the Loan Documents shall be valid unless in writing and signed by a duly authorized representative of the party sought to be bound by such action. The Loan Documents supersede any and all prior representations, warranties and/or inducements, written or oral, heretofore made by Lender, Borrower and Guarantor concerning this transaction, including any commitment for financing. To the extent there is a conflict or inconsistency between any Timeshare Declaration (as it pertains to the right of Borrower to affect the rights of mortgagees) and the Loan Documents, then, as between Borrower and Lender, the provisions of the Loan Documents shall prevail. | 38Entire Agreements
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Except as otherwise provided in this Agreement, all expenses incurred by the Contributor Parties in connection with or related to the authorization, preparation or execution of this Agreement, and the Exhibits and Schedules hereto and thereto, and all other matters related to the Closing, including all fees and expenses of counsel, accountants and financial advisers employed by the Contributor Parties, shall be borne solely and entirely by the Contributor Parties, and all such expenses incurred by Acquiror Parties shall be borne solely and entirely by Acquiror Parties. | 41Expenses
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This Loan Agreement and the Other Agreements are submitted by Borrower to Agent and Lenders, for Agent’s and Lenders’ acceptance or rejection thereof, at Agent’s office in Chicago, Illinois, as an offer by Borrower to borrow monies from Agent and Lenders and shall not be binding upon Agent or Lenders or become effective until and unless accepted by Agent and Lenders, in writing, at said place of business. THIS LOAN AGREEMENT AND THE OTHER AGREEMENTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND UNDER THE LAWS OF THE STATE OF ILLINOIS AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS INCLUDING, BUT NOT LIMITED TO, THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES, BUT EXCLUDING ILLINOIS’ CHOICE OF LAW PROVISIONS. | 47Governing Laws
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Any waiver by either Party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a Party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver of a breach of any provision hereof must be in writing. | 97Waivers
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Neither such Initial Investor nor its Affiliates or any of their respective officers, directors, employees or agents has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for such Initial Investor, in connection with this Agreement or the transactions contemplated hereby. | 15Brokers
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Pursuant to Section 15.3 of the Agreement, Assignor hereby assigns, transfers and conveys to Assignee all of Assignor’s right, title, interest in, and delegates to Assignee all of Assignor’s duties, undertakings, agreements, obligations and covenants under, the Agreement, and Assignee hereby accepts such assignment, transfer and conveyance of the Agreement, and hereby assumes and agrees to be bound by and to perform and observe all of the duties, undertakings, agreements, obligations and covenants under the Agreement that are to be performed by Assignor thereunder in accordance with the terms of the Agreement, including without limitation, obligations that may arise due to conditions existing prior to the Effective Date. | 7Assignments
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Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation, the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares (or the equivalent thereof) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries has been validly issued, are fully paid and non-assessable and to the extent owned by such Loan Party or one or more of its Subsidiaries, and with respect to the Subsidiary Guarantors, TRS Holdco and the TRS Lessees, are owned by such Loan Party or Subsidiaries free and clear of all Liens, except for Liens created under the Loan Documents. | 83Subsidiaries
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Borrower hereby waives presentment for payment, notice of nonpayment, demand, Default, dishonor, and protest. | 97Waivers
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Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time. | 2Amendments
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This Letter Agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the parties hereto; provided , that no such written consent shall be required (a) for any disclosure of the existence or terms of this Letter Agreement to a party’s Representatives with a need to know in connection with the transactions contemplated by the Merger Agreement, (b) to the extent required by applicable Law, the applicable rules of any national securities exchange or if required or requested in connection with any required filing or notice with any Governmental Authority relating to the transactions contemplated by the Merger Agreement or (c) to enforce the rights and remedies under this Letter Agreement. | 20Confidentiality
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The information concerning Target set forth in this Agreement and the exhibits and schedules to this Agreement and any statement or certificate furnished or to be furnished to Buyer pursuant to this Agreement, does not and will not contain any untrue statement or omit to state a fact required to be stated herein or therein or necessary to make the statements and facts contained herein or therein, in light of the circumstances in which they are made, not false or misleading. All information provided to Buyer with respect to the Target Shares and Target is true, accurate and complete. Sellers have provided to Buyer all information that might reasonably be expected to materially and adversely affect the value of the Target Shares and that might otherwise be material to a prospective purchaser of the Target Shares. | 31Disclosures
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Either party hereto may by written notice to the other (i) extend the time for the performance of any of the obligations or other actions of the other under this. Agreement, (ii) waive compliance with any of the conditions or covenants of the other contained in this Agreement and (iii) waive or modify performance of any of the obligations of the other under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of either party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder. | 97Waivers
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A Final Arbitration Award may be enforced in any state or federal court having jurisdiction over the subject matter of the related Dispute. | 37Enforcements
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Each Pledgor agrees that Pledgor will do such acts and things and promptly execute and deliver (and cause the Pledged Entities to promptly execute and deliver) to Agent such financing statements or additional conveyances, assignments, agreements and instruments as Agent may reasonably require to perfect and maintain the perfection of Secured Parties’ Liens hereunder in the Collateral and to otherwise carry into effect the purposes of this Agreement or to further assure and confirm unto Secured Parties its rights, powers and remedies hereunder. Without limiting the generality of the foregoing, each Pledgor hereby irrevocably authorizes Agent at any time and from time to time to file in any filing office any Uniform Commercial Code financing statements and amendments thereto (or equivalents thereof in any foreign countries) that indicate the Collateral and contain any other information required for the sufficiency or filing office acceptance of any financing statement or amendment (or equivalents thereof in any foreign countries), including whether Pledgor is an organization, the type of organization and any organization identification number issued to Pledgor. | 45Further Assurances
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Participant acknowledges that a waiver by the Company of breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any other provision of this Award Agreement, or of any subsequent breach by Participant or any other Plan participant. | 97Waivers
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The Lenders, the Joint Lead Arrangers and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Effective Date. All such amounts will be paid with proceeds of Loans made on the Effective Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Effective Date. | 42Fees
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You acknowledge that you will be in a relationship of confidence and trust with Gap Inc. As a result, during your employment with Gap Inc., you will acquire “Confidential Information,” which is information (whether in electronic or any other format) that people outside Gap Inc. never see, such as unannounced product information or designs, business or strategic plans, financial information and organizational charts, and other materials. | 20Confidentiality
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Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit in U.S. dollars for its own account or for the account of the Borrower and any of the Subsidiary Guarantors, with each Letter of Credit being in a form reasonably acceptable to the Administrative Agent and the Applicable Issuing Bank, at any time and from time to time during the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, in no event shall Barclays or RBC be required to issue Letters of Credit that are not standby Letters of Credit. | 46General
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Subject to Sections 4 and 5 below and the provisions of the Guide and the Plan, amounts payable with respect to the Award will be payable in cash to the Participant following the determination of the Company’s performance, the calculation of the Award pursuant to Schedule A, and approval by the Committee (or the Board, as the case may be) of the payout. Payment shall be made during the 2018 calendar year, but in no event later than March 15, 2018 (the applicable date, the “Payment Date”), provided that, subject to Section 5 below, the Participant is, on the Payment Date, and has been from the first day of the Performance Period through the Payment Date, continuously employed in good standing by the Company or a Subsidiary. No Participant shall have a vested or accrued right to any payment under the Award. For purposes of these terms and conditions, the Participant shall not be deemed to have terminated his or her employment with the Company and its Subsidiaries if he or she is then immediately thereafter employed by the Company or another Subsidiary. Participation in the Plan and receipt of any payments thereunder is expressly conditioned upon the Participant remaining fully compliant with all Company values, principles, agreements, plans, procedures, protocols and policies and all rules contained in the Award Documents. Notwithstanding anything to the contrary set forth herein, to the fullest extent permitted under applicable law, (i) the Company retains the right, in its sole and absolute discretion, to withhold payment and participation from any Participant who violates or has violated any Company value, principle, agreement, plan, procedure, protocol, policy or the rules contained in the Award Documents even if there are no documented performance issues in the Participant’s personnel file and (ii) if the Company has any claim against the Participant for money or assets owed that have not been satisfied by the Participant, the amount otherwise payable pursuant to the Award shall be reduced by any such unpaid claims unless otherwise prohibited by law, including without limitation Section 409A of the Code. The calculation of amounts payable pursuant to the Award with respect to Participants outside of the U.S. will be set forth in the Guide. | 68Payments
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The terms and provisions of the Plan (a copy of which will be furnished to the Employee upon written request to the Office of the Secretary, Philip Morris International Inc., 120 Park Avenue, New York, New York 10017) are incorporated herein by reference. To the extent any provision of this Award is inconsistent or in conflict with any term or provision of the Plan, the Plan shall govern. Capitalized terms not otherwise defined herein have the meaning set forth in the Plan. This Award shall be treated as an Incentive Award for purposes of the Plan, and shall be subject to the limit in Section 5(b)(i) of the Plan based on the sum of the Fair Market Value of the Common Stock (determined at the Vesting Date) and the cash payment with respect to dividends. Notwithstanding the vesting terms of Sections 1 and 2, this Award shall also be subject to any additional performance goals or conditions established by the Compensation Committee in connection with Code section 162(m) with respect to individuals who are “covered employees” within the meaning of Code section 162(m). | 29Definitions
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The respective terms and provisions of the Plan shall be construed, whenever possible, to be in conformity with the requirements of ERISA, or any subsequent laws or amendments thereto. To the extent not in conflict with the preceding sentence or another provision in the Plan, the construction and administration of the Plan shall be 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 (without reference to its conflicts of law provisions). | 23Construction
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Any provision of this Assignment and Consent which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. | 79Severability
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Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 9(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of the Holder appearing on the books of the Company, or if no such facsimile number or address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given. | 65Notices
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This agreement shall be binding on all persons entitled to distributions hereunder and their respective heirs and legal representatives, and on the trustee and its successors. | 84Successors
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This Amendment may be signed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. | 26Counterparts
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Each Principal will indemnify the Company from any actions, which shall arise from any harassment suits, whether they have occurred prior to or after this agreement. | 49Indemnifications
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Each of the parties hereto shall hold, and shall cause its Representatives to hold, in confidence all documents and information furnished to it by or on behalf of any other party to this Agreement in connection with the transactions contemplated hereby pursuant to the terms of the Mutual Non-Disclosure Agreement, dated October 10, 2017, between Buyer and the Company (the “ Confidentiality Agreement ”), which shall continue in full force and effect until the Closing Date. If for any reason this Agreement is terminated prior to the Closing Date, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. | 20Confidentiality
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This Agreement has been duly executed and delivered by the Company and, assuming the due execution and delivery of this Agreement by Seller, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and general principles of equity. The Company has duly taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including, without limitation, compliance with (i) the provisions of Section 160 of the Delaware General Corporation Law and (ii) the Company’s related party transaction policies and procedures. The execution, delivery and performance of this Agreement and the transactions contemplated hereby have been approved by a fully informed vote of the disinterested members of the Company’s board of directors (the “ Board ”). | 10Authorizations
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This Guaranty may be executed in one or more counterparts and by facsimile transmission or electronic signature and when signed by all of the parties listed below shall constitute a single binding agreement. | 26Counterparts
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Parent will, and will cause each of the Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Parent will maintain in effect and enforce policies and procedures designed to ensure compliance by Parent, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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Seller has all requisite power and authority to execute and deliver, and to perform all of its obligations under, this Agreement. | 9Authority
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The parties hereto shall keep strictly confidential any and all proprietary, technical, business, marketing, sales and other information disclosed to another party hereto in connection with the performance of this Agreement (the “ Confidential Information ”), and shall not disclose the same or any part thereof to any third party, or use the same for their own benefit or for the benefit of any third party. The obligations of secrecy and nonuse as set forth herein shall survive the termination of this Agreement for a period of five years. Excluded from this provision is any information available in the public domain and any information disclosed to any of the parties by a third party who is not in breach of confidential obligations owed to another person or entity. Notwithstanding the foregoing, each party hereto may disclose Confidential Information (a) to its bankers, attorneys, accountants and other advisors subject to the same confidentiality obligations imposed herein and (b) as may be required by Law from time to time provided that the party required to disclose provide the other party, to the extent permitted, reasonable notice in order for such party an opportunity to oppose such disclosure. | 20Confidentiality
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By executing this Letter, Parent confirms that it will bear the reasonable legal fees and other out-of-pocket expenses of Atalaya and the Lenders with respect to the transaction. | 42Fees
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All obligations and liabilities of Landlord or Tenant to the other which accrued before the expiration or other termination of this Lease and all such obligations and liabilities which by their nature or under the circumstances can only be, or by the provisions of this Lease may be, performed after such expiration or other termination, shall survive the expiration or other termination of this Lease. Without limiting the generality of the foregoing, the rights and obligations of the parties with respect to any indemnity under this Lease, and with respect to Recurring Additional Charges and any other amounts payable or refundable under this Lease, shall survive the expiration or other termination of this Lease. | 85Survival
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No provision of this Agreement may be waived except by a written instrument signed by the Party against whom the waiver is to be effective; provided , that any such waiver by the Company shall require a Company Independent Approval. Any agreement on the part of a Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein shall be cumulative and not exclusive of any rights or remedies provided by Law. The Company may not waive any provision of the Voting Agreement or, prior to their filing with the Secretary of State of the State of Delaware, either the Series A-1 Certificate of Designation and the Series C-1 Certificate of Designation, without a Company Independent Approval. | 97Waivers
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This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. This Agreement was negotiated by the parties hereto, each of which had the opportunity to engage legal counsel, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation hereof. This Agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and, together with the Plan, constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective permitted successors and assigns. | 59Miscellaneous
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The initial term of employment under this Agreement shall be for the period commencing on the effective date of the Prior Agreement (the “ Commencement Date ”) and ending on the fifth anniversary of the Commencement Date; provided , however , that thereafter this Agreement shall be automatically renewed from year to year, unless (a) either the Company or the Executive shall have given written notice to the other at least thirty (30) days prior thereto that the term of this Agreement shall not be so renewed or (b) the Agreement is terminated pursuant to the provisions of Section 8 of this Agreement. | 89Terms
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Each Borrower and Subsidiary owns or has the lawful right to use all intellectual and similar property necessary for the conduct of its business, without conflict with any rights of others. There is no pending or, to Borrower’s knowledge, threatened claim with respect to Borrower or any of its Property (including any intellectual property). Except as disclosed on Schedule 9.1.11 , no Borrower or Subsidiary pays or owes any License, Royalty or other compensation to any Person with respect to use or License of any intellectual property. All intellectual property owned, used or licensed by, or otherwise subject to any interests of, any Borrower or Subsidiary have been disclosed on Schedule 9.1.11 or constitutes (x) license agreements for commercially available off-the-shelf software that is generally available to the public which have been licensed to a Borrower pursuant to end-user licenses, and for the avoidance of doubt, such commercially available software includes commercially available open source, shareware and freeware software and (y) non-exclusive licenses to Intellectual Property granted by consultants, service providers, research associates, data vendors, or other content providers as a component of or ancillary to a consulting agreement, services agreement, research agreement or similar agreement entered into by such Borrower in the ordinary course of business. | 53Intellectual Property
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The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents. The execution and delivery of this Agreement, the other Transaction Documents and Warrants by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required. Each of this Agreement, the Warrants and the other Transaction Documents has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. | 9Authority
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The Borrower shall make mandatory principal prepayments of the Loans in the manner set forth in clause (v) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds in excess of $1,000,000 per incident from any Insurance and Condemnation Event by any Credit Party or any of its Subsidiaries. Such prepayments shall be made within five (5) Business Days after the date of receipt of Net Cash Proceeds of any such Insurance and Condemnation Event by such Credit Party or such Subsidiary; provided that, so long as no Default or Event of Default has occurred and is continuing, no prepayments shall be required hereunder in connection with Net Cash Proceeds from Insurance and Condemnation Events by any Credit Party or any of its Subsidiaries which are reinvested in assets within one hundred eighty (180) days after receipt of such Net Cash Proceeds by such Credit Party or such Subsidiary; provided , that any portion of the Net Cash Proceeds not actually reinvested within such one hundred eighty (180) day period shall be prepaid in accordance with this Section, unless the insurance proceeds are being used to rebuild or repair the affected property and the rebuilding or repairs have commenced and are proceeding in a commercially reasonable manner. | 51Insurances
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The Borrowers agree and acknowledge that the additional interest and fees that may be charged under Section 4.2 are (a) an inducement to the Lenders to make Advances and to the Letter of Credit Issuer to cause Letters of Credit to be issued hereunder and that the Lenders and the Agent would not consummate the transactions contemplated by this Agreement without the inclusion of such provisions, (b) fair and reasonable estimates of the Lenders’ and the Agent’s costs of administering the credit facility upon an Event of Default, and (c) intended to estimate the Lenders’ and the Agent’s increased risks upon an Event of Default. | 54Interests
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The Executive shall report to the Company’s Board of Directors (the “ Board ”) and be subject to the lawful direction of the Board. The Executive agrees to perform to the best of his ability, experience and talent those acts and duties, consistent with the position of Chief Executive Officer as the Board shall from time to time direct. During the Term, the Executive also shall serve in such other executive-level positions or capacities as may, from time to time, be reasonably requested by the Board, including, without limitation (subject to election, appointment, re-election or re-appointment, as applicable) as (a) a member of the Board and/or as a member of the board of directors or similar governing body of any of the Company’s subsidiaries or other Affiliates (as defined below), (b) an officer of any of the Company’s subsidiaries or other Affiliates, and/or (c) a member of any committee of the Company and/or any of its subsidiaries or other Affiliates, in each case, for no additional compensation. As used in this Agreement, “ Affiliate ” of any individual or entity means any other individual or entity that directly or individual controls, is controlled by, or is under common control with, the individual or entity. For avoidance of doubt, any election of the Executive as a member of the Board is independent from the employment of the Executive under this Agreement and subject to normal procedures, bylaws and agreements regulating the election and/or removal of the members of the Board; provided, however, that, as set forth above, such service shall be for no additional compensation. | 32Duties
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