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The Borrower shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Lender Parties shall have no responsibility or liability to the Borrower with respect thereto. | no fiduciary duty | Given the provision, provide with the correct label for the given provision |
Following and in accordance with the outcome of the applicable vote under its Parity Lien Documents, the Parity Lien Representative of each Series of Parity Lien Debt will cast all of its votes under that Series of Parity Lien Debt as a block in respect of any vote under this Agreement. | voting | Given the provision, provide with the correct label for the given provision |
The Participant hereby acknowledges receipt of a copy of the Plan, including the Accession Agreement attached thereto as Exhibit A. | participant acknowledgments | Given the provision, provide with the correct label for the given provision |
This provision shall survive the expiration or earlier termination of this Lease. | payments | Given the provision, provide with the correct label for the given provision |
Seller, Pledgor and Guarantor each have no Knowledge of any violation, alleged violation, non‑compliance, liability or potential liability of Seller, Pledgor or Guarantor under any Environmental Law. | compliance with laws | Given the provision, provide with the correct label for the given provision |
In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. | reliance by administrative agents | Given the provision, provide with the correct label for the given provision |
Since the date of the Closing Date Acquisition Agreement, there shall have been no Material Adverse Effect (as defined in the Closing Date Acquisition Agreement as in effect on August 9, 2018). | company material adverse effect | Given the provision, provide with the correct label for the given provision |
The interests of Executive under this Agreement are not subject to the claims of Executive’s creditors other than the Company, and may not otherwise be voluntarily or involuntarily assigned, alienated or encumbered except to Executive’s beneficiary or estate upon his/her death and except as otherwise required by law. | nonalienation | Given the provision, provide with the correct label for the given provision |
Landlord and Tenant each represents and warrants that it has not dealt with any broker, agent or other person (collectively, “ Broker ”) in connection with this transaction and that no Broker brought about this transaction. | brokers | Given the provision, provide with the correct label for the given provision |
Upon any termination by Licensor pursuant to this Section 8.3 , (i) any and all sublicenses that have been granted to a Sublicensee with respect to the licenses and rights that have been terminated (such licenses, the “ Terminated Licenses ”) shall automatically terminate and (ii) Licensee shall, and shall ensure that its Affiliates and Sublicensees, immediately cease use of all Licensed IP under the Terminated Licenses. | effects of termination | Given the provision, provide with the correct label for the given provision |
Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. | miscellaneous | Given the provision, provide with the correct label for the given provision |
There are no stop orders in effect with respect to any of the Company’s securities. | securities laws | Given the provision, provide with the correct label for the given provision |
The Note, the Loan Agreement, this Security Instrument and the other Loan Documents constitute the entire understanding and agreement between Borrower and Lender with respect to the transactions arising in connection with the Debt and supersede all prior written or oral understandings and agreements between Borrower and Lender with respect thereto. | entire agreement | Given the provision, provide with the correct label for the given provision |
Each Credit Party hereby covenants and agrees that neither the Credit Parties nor any of their Subsidiaries will, by amendment of its articles or certificate of incorporation, bylaws, or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, the Unsecured Note or any other Transaction Document, and will at all times in good faith carry out all of the provisions of the Transaction Documents and take all action as may be required to protect the rights of the Lender. | non-circumvention | Given the provision, provide with the correct label for the given provision |
The parties agree that said termination of employment was a termination by the Company other than for Cause within the meaning of Section 2 of that certain Severance Agreement (the “Severance Agreement”) entered into by and between the parties with an effective date of January 1, 2016. | termination of employment | Given the provision, provide with the correct label for the given provision |
Otherwise, except as provided in Section 4, above, neither the Company nor Participant shall initiate or prosecute any lawsuit or claim in any way related to any arbitrable claim, including without limitation any claim as to the making, existence, validity, or enforceability of this Agreement. | enforcements | Given the provision, provide with the correct label for the given provision |
Whenever any amount expressed to be due by the terms of the Secured Note or LC Note are due on any day which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day and, in the case of any Interest Date which is not the date on which the Secured Note or LC Note are paid in full in cash, the extension of the due date thereof shall not be taken into account for purposes of determining the amount of interest due on such date. | payments | Given the provision, provide with the correct label for the given provision |
The Plan shall be unfunded except to the extent that the Company, solely for the Company’s convenience and, at the Company’s sole discretion, makes contributions with respect to Plan benefits to a trust under Section 501(c) (9) of the Internal Revenue Code. | plan unfunded | Given the provision, provide with the correct label for the given provision |
A set of the copies of this Agreement signed by all the parties shall be delivered to the Borrower Representative and the Administrative Agent. | counterparts | Given the provision, provide with the correct label for the given provision |
Each Agent and its Affiliates may make loans to, accept deposits from, and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. | agent in its individual capacity | Given the provision, provide with the correct label for the given provision |
The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by Administrative Agent (including any consultants, accountants, lawyers and appraisers retained by the Administrative Agent) to conduct evaluations and appraisals of the Borrower’s computation of the Borrowing Base (and any components thereof) and the assets included in the Borrowing Base (and any components thereof, including, for clarity, audits of any Agency Accounts, funds transfers and custody procedures), all at such reasonable times and as often as reasonably requested. | audit rights | Given the provision, provide with the correct label for the given provision |
Seller has not dealt with any broker, investment banker, agent, or other Person (other than Buyer or an Affiliate of Buyer) who may be entitled to any commission or compensation in connection with the sale of Purchased Mortgage Loans pursuant to any of the Transaction Documents. | no brokers | Given the provision, provide with the correct label for the given provision |
To Seller’s knowledge, the financial statements for the Property delivered to Buyer fairly represent results of operations in the manner customarily received from Manager and provided to Seller’s lender. | financial statements | Given the provision, provide with the correct label for the given provision |
and state disability, and will execute and deliver to Bank, on demand, proof satisfactory to Bank indicating that Borrower or a Subsidiary has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that Borrower or a Subsidiary need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower. | taxes | Given the provision, provide with the correct label for the given provision |
Subject to the limitations set forth in Section 12, the Committee may accelerate vesting or payment, as to any or all Stock Units at any time for any reason, provided such acceleration complies with section 409A of the Code. | terms of stock units | Given the provision, provide with the correct label for the given provision |
If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or any of its affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. | certain excise taxes | Given the provision, provide with the correct label for the given provision |
(a) The Borrowers shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with paragraph (c) of this Section and, if applicable, payment of any break funding expenses under Section 2.16. | prepayment of loans | Given the provision, provide with the correct label for the given provision |
Delivery of an executed counterpart of a signature page to this Agreement by facsimile (or other electronic transmission) shall be effective as delivery of a manually executed counterpart of this Agreement. | counterparts | Given the provision, provide with the correct label for the given provision |
Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender. | additional procedures | Given the provision, provide with the correct label for the given provision |
Without limiting the generality of the foregoing, the Company (a) shall not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (b) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue duly authorized, fully paid and non-assessable shares of Common Stock upon the exercise of this Warrant, and (c) shall, in accordance with Section 1(g) above, so long as any of the Warrant remains outstanding, take all action necessary to reserve and keep available out of its authorized and unissued shares of Common Stock, solely for the purpose of effecting the exercise of the Warrant, 250% of the maximum number of shares of Common Stock as shall from time to time be necessary to effect the exercise of the Warrant then outstanding (without regard to any limitations on exercise). | noncircumvention | Given the provision, provide with the correct label for the given provision |
The amount of any payment by Agent under this Section shall be charged to Borrowers’ Account as a Revolving Advance and added to the Obligations and, until Loan Parties shall furnish Agent with an indemnity therefor (or supply Agent with evidence satisfactory to Agent that due provision for the payment thereof has been made), Agent may hold without interest any balance standing to Loan Parties’ credit and Agent shall retain its security interest in any and all Collateral held by Agent. | payment of taxes | Given the provision, provide with the correct label for the given provision |
The Borrower may from time to time request that an Issuing Lender issue a Letter of Credit by delivering (including via electronic delivery) an Application therefor to such Issuing Lender at its address specified on Schedule 1.1E or such other address as such Issuing Lender shall notify to the Borrower, completed to the satisfaction of such Issuing Lender, and such information describing the purpose of the Letter of Credit, whether such Letter of Credit is a Financial Letter of Credit or a Performance Letter of Credit and the location of the related project or development as such Issuing Lender may request. | procedure for issuance of letter of credit | Given the provision, provide with the correct label for the given provision |
The Escrow Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation. | compliance with federal laws | Given the provision, provide with the correct label for the given provision |
Borrower shall have paid to Administrative Agent such fees as are required to be paid pursuant to the Fee Letter. | payment of fees | Given the provision, provide with the correct label for the given provision |
If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. | avoidance issues | Given the provision, provide with the correct label for the given provision |
The Buyers and the Company agree that the Notes and the Warrants constitute an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the “ Code ”). | purchase prices | Given the provision, provide with the correct label for the given provision |
If any sentence in this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. | severability | Given the provision, provide with the correct label for the given provision |
If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided , in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided , further , this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. | right to indemnity | Given the provision, provide with the correct label for the given provision |
All of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Issuer are owned, directly or indirectly, by the Issuer, free and clear of all liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind (collectively, “ Liens ”), other than Permitted Liens and any Liens imposed by the Securities Act and the securities or “Blue Sky” laws of certain U.S. state or non-U.S. jurisdictions. | capitalization | Given the provision, provide with the correct label for the given provision |
After the Termination Date, which in the event of a Disability shall be the date upon which notice of termination is given, no further compensation shall be payable under this Agreement except that Executive shall receive the accrued portion of any salary and bonus through the Termination Date, less standard withholdings for tax and social security purposes, payable, in the case of a bonus, upon such date or over such period of time which is in accordance with the applicable bonus plan plus severance equal to 100% of his then Base Salary for 15 months without offset for any disability payments Executive may receive, payable in equal monthly installments. | termination upon disability | Given the provision, provide with the correct label for the given provision |
Each Obligor and Subsidiary has, is in compliance with, and, to the extent such concept is applicable in such jurisdiction, is in good standing (to the extent such concept exists and is applicable under the requirements of Applicable Law of the relevant jurisdiction) with respect to, all Governmental Approvals necessary to conduct its business and to own, lease and operate its Properties, except as could reasonably be expected to result in a Material Adverse Effect. | governmental approvals | Given the provision, provide with the correct label for the given provision |
The Borrower shall pay such Lender or such Issuing Lender or such other Recipient, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof. | certificates for reimbursement | Given the provision, provide with the correct label for the given provision |
Each Borrower may, upon notice from the Parent Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days (or such shorter time period as may be agreed by the Administrative Agent in its sole discretion) prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; and (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. | optional | Given the provision, provide with the correct label for the given provision |
The Creditor agrees and covenants that it will not engage in hedging transactions with regard to the Shares prior to the expiration of the distribution compliance period specified in Rule 903 of Regulation S promulgated under the 1933 Act, unless in compliance with the 1933 Act. | restricted securities | Given the provision, provide with the correct label for the given provision |
If the By-Laws are amended after the date of this Agreement in a way which results in Employee being entitled to less protection or compensation, then such amendments will not be given any effect in construing this provision. | indemnifications | Given the provision, provide with the correct label for the given provision |
This engagement will be non-exclusive to the Advisor and the Client. | exclusivity | Given the provision, provide with the correct label for the given provision |
The Committee shall certify and announce the results for the performance period to all Participants after Actua determines the financial results for the performance period. | certification of results | Given the provision, provide with the correct label for the given provision |
Notwithstanding any other provision hereof, the amount of interest payable hereunder shall not in any event exceed the maximum amount permitted by the law applicable to interest charged on commercial loans. | payment of interest | Given the provision, provide with the correct label for the given provision |
For purposes of the foregoing representation, Lessor’s actual knowledge shall be limited to the actual knowledge, without a duty of inquiry or investigation, of the person executing this Lease on behalf of Lessor. | restrictions | Given the provision, provide with the correct label for the given provision |
The Purchasers shall have no obligation or liability with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform the obligations of Seller. | responsibilities of seller | Given the provision, provide with the correct label for the given provision |
Unless an Event of Default is in existence, Grantor shall be entitled to receive all cash Dividends paid in respect of any of the Collateral. | distributions | Given the provision, provide with the correct label for the given provision |
Every time Parent delivers to the Applicable Class B Unitholder(s) an applicable Schedule under this TRA, including any Amended Schedule delivered pursuant to Section 2.4(b), but excluding any Early Termination Schedule, Change of Control Termination Schedule, amended Early Termination Schedule or amended Change of Control Termination Schedule, Parent shall also (i) deliver to the Applicable Class B Unitholder(s) schedules and work papers, as reasonably determined by Parent or reasonably requested by the Applicable Class B Unitholder(s), providing reasonable detail regarding the preparation of the Schedule and (ii) allow the Applicable Class B Unitholder(s) reasonable access at no cost to the appropriate representatives at Parent, as determined by Parent or requested by the Applicable Class B Unitholder(s) in connection with a review of such Schedule. | procedures | Given the provision, provide with the correct label for the given provision |
Notwithstanding any provision of the Plan to the contrary, any duty or function which may be performed by the Committee or its delegates under the Plan may instead be performed by the Board if the Board so determines in its sole discretion. | administration | Given the provision, provide with the correct label for the given provision |
Except as expressly provided herein, termination of this Agreement by either party or by mutual agreement of the parties shall also terminate Executive’s employment by the Company. | executives | Given the provision, provide with the correct label for the given provision |
All Employees and Non-Employee Directors shall be eligible to participate in the Plan. | eligible persons | Given the provision, provide with the correct label for the given provision |
The Borrower shall have delivered to the Administrative Agent an executed Control Agreement, in form and substance satisfactory to the Administrative Agent, for each Deposit Account (other than Excluded Deposit Accounts) and each Securities Account maintained by a Credit Party not held with the Administrative Agent. | control agreements | Given the provision, provide with the correct label for the given provision |
Upon its receipt and acceptance of a duly executed and completed Assignment Agreement, the processing and recordation fee of $3,500 (which, for the avoidance of doubt, is not required in the case of an assignment from a Holder to a Substitute Purchaser), any “know your customer” documents reasonably requested by the Agent, and any other forms, certificates or other evidence required by this Agreement in connection therewith, Agent shall record the information contained in such Assignment Agreement in the Register, shall give prompt notice thereof to the Company and shall maintain a copy of such Assignment Agreement. | notice of assignment | Given the provision, provide with the correct label for the given provision |
The Committee shall have no obligation to make adjustments to a Participant’s Account for any discrepancy reported to the Committee more than six (6) months after receipt of the statement, or for a discrepancy caused by the Participant’s error. | statement of accounts | Given the provision, provide with the correct label for the given provision |
To the extent Asset Representations Reviewer receives Personally Identifiable Information in the performance of services under this Agreement, the Asset Representations Reviewer represents and warrants that it has, and will continue to have adequate administrative, technical, and physical safeguards: (i) to ensure the security and confidentiality of Personally Identifiable Information; (ii) to protect against any anticipated threats or hazards to the security or integrity of Personally Identifiable Information; and (iii) to protect against unauthorized acquisition of, access to or use of Personally Identifiable Information which could result in a “breach” as that term is defined under applicable Privacy Laws. | safeguards | Given the provision, provide with the correct label for the given provision |
If there is a net decrease in Partnership Minimum Gain for a Partnership Year, in accordance with Regulations Section 1.704-2(f) and the exceptions contained therein, the Partners shall be allocated items of Partnership income and gain for such Partnership Year (and, if necessary, for subsequent Partnership Years) equal to the Partners’ respective shares of the net decrease in Minimum Gain within the meaning of Regulations Section 1.704-2(g)(2) (the “ Minimum Gain Chargeback ”). | minimum gain chargeback | Given the provision, provide with the correct label for the given provision |
The Credit Parties shall not permit Consolidated Tangible Net Worth at any time to be less than an amount equal to (i) prior to the occurrence of the Divestiture, the sum of (A) 75% of Original Closing Date Consolidated Tangible Net Worth and (B) 75% of the net cash proceeds received by the Parent Guarantor from issuances and sales of common stock of the Parent Guarantor from and after the Original Closing Date through such date of determination and (ii) from and after the occurrence of the Divestiture, the sum of (A) 75% of Original Closing Date Consolidated Tangible Net Worth and (B) 75% of the net cash proceeds received by the Parent Guarantor from issuances and sales of common stock of the Parent Guarantor from and after the Original Closing Date through such date of determination (excluding net cash proceeds of issuances and sales of common stock of the Parent Guarantor conducted solely in connection with the initial acquisition by the Borrower and its Subsidiaries of the Divested Properties (the “ Divested Property Equity ”) solely to the extent such Divested Property Equity (in the form of equity value in the Divested Properties or otherwise) is disposed of or otherwise transferred to NRE in connection with the Divestiture; provided that the maximum aggregate amount of Divested Property Equity that is so excluded shall not exceed $900,000,000). | minimum net worth | Given the provision, provide with the correct label for the given provision |
Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. | advancement of expenses | Given the provision, provide with the correct label for the given provision |
The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. | reliance | Given the provision, provide with the correct label for the given provision |
Each Revolving Lender agrees that the Borrower may from time to time request the Revolving Lenders to submit offers to make loans (each such loan, a “ Bid Loan” ) to the Borrower prior to the Revolving Commitment Termination Date pursuant to this Section 2.04A ; provided, however , that after giving effect to any Bid Borrowing, (A) the Total Revolver Outstandings shall not exceed the Aggregate Revolving Commitments, and (B) the aggregate Outstanding Amount of all Bid Loans shall not exceed the Bid Loan Sublimit. | general | Given the provision, provide with the correct label for the given provision |
The Parties will replace an invalid provision or fill any gaps with valid provisions, which most closely approximate the purpose and economic effect of the invalid provision or, in the case of a gap, the Parties’ presumable intentions. | severability | Given the provision, provide with the correct label for the given provision |
Each Bank agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. | right of setoff | Given the provision, provide with the correct label for the given provision |
Any controversy, dispute, or claim of any nature arising out of, in connection with, or in relation to the interpretation, performance, enforcement or breach of this Agreement (and any closing document executed in connection herewith) shall be governed by the dispute resolution provisions set forth in Section 11.11 of the Contribution Agreement. | dispute resolutions | Given the provision, provide with the correct label for the given provision |
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Local Time (in the case of a Eurodollar Loan) or 2:00 p.m., Local Time (in the case of an ABR Loan), to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. | funding of borrowings | Given the provision, provide with the correct label for the given provision |
Further, if you are subject to Tax-Related Items in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, you acknowledge that the Company may be required to withhold or account for Tax-Related Items in more than one jurisdiction. | responsibility for taxes | Given the provision, provide with the correct label for the given provision |
All references in any document or instrument to the Loan Agreement is hereby amended and shall refer to the Loan Agreement, as amended by this Amendment. | affirmations | Given the provision, provide with the correct label for the given provision |
Any such Notice shall be delivered (i) to Tenant at the appropriate address set forth in Section 10 of the Summary, or to such other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) to Landlord at the addresses set forth in Section 11 of the Summary, or to such other firm or to such other place as Landlord may from time to time designate in a Notice to Tenant. | notices | Given the provision, provide with the correct label for the given provision |
If any term or other provision of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms and provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, so long as the economic and legal substance of the transactions contemplated hereby, taken as a whole, are not affected in a manner materially adverse to any party. | severability | Given the provision, provide with the correct label for the given provision |
The rights and remedies of Lender are cumulative, may be exercised at any time and from time to time, concurrently or in any order, and are not exclusive of any other rights or remedies available by agreement, by law, at equity or otherwise. | cumulative rights | Given the provision, provide with the correct label for the given provision |
Each Initial Purchaser hereby represents and agrees that it has not used, authorized the use of, referred to or participated in the planning for the use of, and will not use, authorize the use of, refer to or participate in the planning for the use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Time of Sale Information or the Offering Memorandum, (iii) any written communication listed on Annex A or prepared pursuant to Section 4(c) above (including any electronic road show (as defined below) approved in advance by the Company) (iv) any written communication prepared by such Initial Purchaser and approved by the Company in advance in writing or (v) any written communication relating to or that contains the terms of the Securities and/or other information that was included (including through incorporation by reference) in the Time of Sale Information or the Offering Memorandum. | certain agreements of the initial purchasers | Given the provision, provide with the correct label for the given provision |
§1.401(k)-1(d)(3) (relating to in-service distributions of 401(k) plan elective contributions as a result of an immediate and heavy financial need), in accordance with Treas. | cancellation of deferrals | Given the provision, provide with the correct label for the given provision |
Context:
INTELLECTUAL PROPERTY AGREEMENT
This Intellectual Property Agreement (this "Agreement") is entered into in ShenZhen on February 08, 2007 between the following two parties:
Party A: JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司 ) Registration Address: Room 1605 B,Tianan Hi-tech Plaza Tower A,Tian An Cyber Park,Futian District,Shenzhen,China
Party B: ShenZhen JingWei Communication Co., Ltd.(深圳经纬通信技术有限公司) Registration Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District, Shenzhen.
WHEREAS:
1. Party A, a wholly foreign-owned enterprise incorporated under the laws of the People's Republic of China (the "PRC"), which has the right of the intellectual property (including but not limited to Trademark, the Ownership of Consumer Data Base, Software Copyright and License) specified in the Appendix I of this Agreement (the "intellectual property").
2. Party B is a limited liability company duly incorporated and validly existing under the PRC law, which is licensed by relevant government authorities to engage in the internet information service value-added telecommunication service;
3. Party A agrees to license the non- exclusive right to use the intellectual property pursuant to this Agreement to Party B in accordance with the terms and conditions set forth herein and Party B agrees to accept the right to use the intellectual property on the same terms and conditions set forth herein.
NOW THEREFORE, both Parties agree as follows:
1. Grant of License
1.1 The Intellectual Property
1.1.1 Upon the terms and conditions hereinafter set forth, Party A hereby agrees to grant and Party B hereby agree to accept the right to use the intellectual property in PRC. The license under this Agreement is a non-exclusive, non-assignable and non-transferable license.
1.1.2 Party A owns the sole and exclusive right of the intellectual property, including any improvement, upgrades and derived products, no matter whether such products are created by Party A or Party B. The right and obligation under 1.1.2 of this article shall survive upon termination of this Agreement.
1.2 Scope
Intellectual Property Agreement 1
1.2.1 The Intellectual Property granted to Party B shall only be used to the scope of Party B's Business operated by Party B. Party B shall not sub-license the Intellectual Property to others or use the Intellectual Property in the third party's training, business share, lease without the consent from Party A, unless there are opposite stipulations in this Agreement.
1.2.2 The use right granted under this Agreement is only valid in the PRC. Party B agrees not to directly or indirectly use or authorize to use the Intellectual Property in the other regions.
2. Terms of Payment: Party B agrees to pay Party A the Intellectual Property License fees (the "License Fees") and the specified amount of the license fees and the form of payment are set forth in Appendix 2. Party A has the right to exempt the obligation of payment or adjust the amount of the License Fees set forth in Appendix 2 according to the actual circumstances from time to time.
3. Party A's Rights and Protection of the Party A's Rights
3.1 Party B agrees, during the term of this Agreement, or thereafter, not to query the copyright or any rights of Party A in connection with the Intellectual Property, and conduct any actions that is deemed by Party A as harmful to its rights or license.
3.2 Party B agrees to provide necessary assistances to help Party A to protect the rights of Intellectual Property. Party A may participate the lawsuits related to the claims of compensation with its own desire, on behalf of itself, Party B or both Parties, once any third party claims the compensation in connection with the Intellectual Property of Party A. If any third party infringes any right of Intellectual Property, Party B shall notify Party A immediately in written of such infringements within the scope that it knows, and only Party A has the right to take actions against such infringements.
3.3 Party B agrees to use the Intellectual Property only pursuant to this Agreement and not to use the Intellectual Property by manner of deceit, misleading or others manners that are deemed by Party A as harmful to the Intellectual Property or the reputation of Party A.
4. Confidentiality
4.1 Party B shall protect and maintain the confidentiality of any and all confidential data and information acknowledged or received by Party B from Party A (collectively the "Confidential Information"). Upon termination of this Agreement, Party B shall return Confidential Information to Party A or destroy it itself and delete Confidential Information from any electronic devices and cease to use them as required by Party A. Party B shall not disclose, grant or transfer any Confidential Information to any third party and will not use the Confidential Information without Party A's written consent.
4.2 Both Parties agree that the Article 4 shall survive whatever this agreement is amended, rescinded or terminated.
5. Representations and Warranties
5.1 Party A represents and warrants as follows:
Intellectual Property Agreement 2
5.1.1 Party A is a wholly foreign-owned enterprise duly incorporated and validly existing under the laws of the PRC.
5.1.2 Party A, subject to its company power and business scope, has taken necessary company actions to get the proper authorization and the consents or approvals (if necessary) from other third party or governments, without breaching any restricts of the laws and company that binds or affects Party A to execute and perform this Agreement.
5.1.3 The Agreement will constitute a legal, valid and binding agreement of Party A and will be enforceable against Party A in accordance with its terms upon its execution.
5.1.4 Party A owned copyright or license of the Intellectual Property.
5.2 Party B represents and warrants as follows:
5.2.1 Party B is a company duly registered and validly existing under the laws of the PRC and is licensed by relevant government authorities to engage in the internet information service value-added telecommunication service.
5.2.2 Party B, subject to its company power and business scope, has taken necessary company actions to get the proper authorization and the consents or approvals (if necessary) from other third party or governments, without breaching any restricts of the laws and company that binds or affects Party B to execute and perform this Agreement.
5.2.3 The Agreement will constitute a legal, valid and binding agreement of Party B and will be enforceable against Party B in accordance with its terms upon its execution.
6. Effective Date and Term
6.1 This Agreement has been duly executed as of the date first set forth above and shall be effective simultaneously. The term of this Agreement is five (5) years unless the early termination in accordance with this Agreement. However, Party A and Party B shall review this Agreement every six (6) months to determine whether any amendment or supplement to the Agreement is necessary by considering the circumstances after the executing of this Agreement.
6.2 This Agreement may be extended by both Parties in writing upon the expiration of this Agreement. The term of extension will be decided by the consultation of both Parties.
7. Termination
7.1 Early Termination
Without prejudice to any legal or other rights or remedies of the party who asks for termination of this Agreement, any Party has the right to terminate this Agreement immediately with written notice to the other party in the event the other party materially breaches this Agreement including but not limited to the obligation under Article 3 of this Agreement and fails to cure its breach within thirty (30) days from the date it receives written notice of its breach from the non-breaching party. During the term of this Agreement, Party A may terminate this Agreement at any time with a written notice to Party B 30 days before such termination.
Intellectual Property Agreement 3
7.2 Effect of Termination or Expiration
Upon and after the expiration or termination of this Agreement, Party B shall not have all rights granted pursuant to this Agreement and will refrain from further direct or indirect use of the Intellectual Property.
8. Force Majeure
8.1 Force Majeure, which includes but not limited to acts of governments, acts of nature, fire, explosion, typhoon, flood, earthquake, tide, lightning or war, means any event that is beyond the party's reasonable control and cannot be prevented with reasonable care of the affected party. However, any shortage of credit, capital or finance shall not be regarded as an event beyond the party's reasonable control. The party affected by Force Majeure and seeks for the exemption from performing the obligations under this Agreement shall inform the other party of such exemption and any action taken by it for performing this Agreement.
8.2 In the event that the affected party is delayed in or prevented from performing its obligations under this Agreement by Force Majeure, only within the scope of such delay or prevention, the affected party will not be responsible for any damage by reason of such a failure or delay of performance. The affected party shall take appropriate manners to minimize or remove the effects of Force Majeure and attempt to resume the performance of the obligations delayed or prevented by the event of Force Majeure. Once the event of Force Majeure is removed, both parties agree to resume the performance of this Agreement with their best efforts.
9. Settlement of Disputes: Both Parties shall strive to settle any dispute arising from the interpretation or performance through friendly consultation. In case no settlement can be reached through consultation within 30 days after one party ask for consultation, each party can submit such matter to China International Economic and Trade Arbitration Commission (the "CIETAC") in accordance with its rules, and the arbitration proceedings shall be conducted in Chinese and shall take place in Beijing. The arbitration award shall be final and conclusive and binding upon the parties and shall be enforceable in accordance with its terms.
10. Notices: Notices or other communications required to be given by any party pursuant to this Agreement shall be written in English and Chinese and delivered personally or sent by registered mail or postage prepaid mail or by a recognized courier service or by facsimile transmission to the address of relevant each party or both parties set forth below or other address of the party or of the other addressees specified by such party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served the tenth (10th) day after the date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after the delivery date to the internationally recognized courier service agency; and (c) a notice sent by facsimile transmission is deemed duly served upon the receipt time as is shown on the transmission confirmation of relevant documents. Intellectual Property Agreement 4
Party A: JingWei HengTong Technology (ShenZhen) Co., Ltd. Address: Room 1605 B,Tianan Hi-tech Plaza Tower A,Tian An Cyber Park,Futian District,Shenzhen Attn: Ms. Wei Zhang Fax: 86-0755-82924449 Tel: 86-0755-82924488
Party B: ShenZhen JingWei Communication Co., Ltd. Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District, Shenzhen. Attn: Mr. Wei Li Fax: 86-0755-82924449 Tel: 86-0755-82924488
11. Assignment or Sublicense: This Agreement and all the rights and obligations of Party B hereunder shall not be assigned, pledged, sublicensed without the prior written consent of Party A.
12. Applicable Law: The validity, implementation and interpretation of this Agreement shall be governed by the laws of PRC.
13. Amendment and Supplement: Any amendment and supplement of this Agreement shall be made by both parties in writing. The amendment and supplement duly executed by both parties shall be deemed as a part of this Agreement and shall have the same legal effect as this Agreement.
14. Severability: If any clause hereof is judged as invalid or non-enforceable according to relevant laws, such clause shall be deemed invalid only within the applicable area of the Laws and without affecting other clauses hereof in any way.
15. Appendices: The Appendices referred to in this Agreement are an integral part of this Agreement and have the same legal effect as this Agreement.
IN WITNESS THEREOF Both Parties hereto have caused this Agreement to be duly executed on their behalf by a duly authorized representative as of the date first set forth above.
Party A: JingWei HengTong Technology (ShenZhen) Co., Ltd. Legal Representative/Authorized Representative: Seal:
Party B: ShenZhen JingWei Communication Co., Ltd. Legal Representative/Authorized Representative: Seal:
5
Appendix 1
List of Intellectual property
Item Certificate Name Certificate number Issue date
1 Product Registration Certificate (Operation analysisV1.0) (经篛分析炑件V1.0) 深 DGY - 2003 - 0164 2003.3.6
2 Product Registration Certificate (NGNbilling and operationV2.1)(NGN综合篛帐和瑟狇炑件V2.1) 深 DGY - 2005 - 0030 2005.1.27
3 Product Registration Certificate (YL-2000Telecom operation billingV3.X)(宇恧YL-2000电信业务瑟狇帐务系统V3.X) 深 DGY - 2001 - 0177 2001.6.15
4 Product Registration Certificate (YLDC-2000multiserver data collectionV2.10)(YLDC-2000羬机渹椺炑件V2.10) 深 DGY - 2003 - 0163 2003.3.6
5 Product Registration Certificate (YL-2001major account managementV2.0)(YL-2001大客户管理炑件V2.0) 深 DGY - 2003 - 0105 2003.3.6
6 Product Registration Certificate (Data ware housingV1.0)(新宇恧炑件数据仓库炑件V1.0) 深 DGY - 2006 - 0780 2006.3.16
7 Product Registration Certificate (GT800-OBSSoperationV3.0)新宇恧GT800-OBSS篛帐炑件V3.0) 深 DGY - 2006 - 0363 2006.4.29
8 software ownership certificate (NGNopeation and billingV2.1)(NGN综合篛帐和瑟狇炑件V2.1) 2005SR02400 2005.03.03
9 software ownership certificate (telecom operation strategic analysisV1.0)(电信决策支持系统V1.0) 2004SR03050 2004.04.08
List of Consumer Data Acquisition and Management Contracts
Contract Contract Partner 1 Consumer Data Acquisition and Management Contract ShenZhen HongTian Hi-Tech Development Co, Ltd 深圳市宏天攨科技发展有榰公司 2 Consumer Data Acquisition and Management Contract ShenZhen Doubi Digital Tech Co, Ltd 深圳市多比数码技术有榰公司 3 Consumer Data Acquisition and Management Contract GuangDong FengDa Hi-Tech Co, Ltd 广东丰灂攨科技有榰公司 Intellectual Property Agreement 6
Appendix 2 Account and payment method of License Fee
Party B should pay for All Intellectual Property RMB 1,000,000 per year to Party A as license fee. Party B shall pay the license fee to the account designated by Party A before December 31 each year. Party A has the right to determine whether or not to exempt the Party B's obligation to pay license fee at its discretion. Intellectual Property Agreement 7
Question:
Highlight the parts (if any) of this contract related to "License Grant" that should be reviewed by a lawyer. Details: Does the contract contain a license granted by one party to its counterparty? | Upon the terms and conditions hereinafter set forth, Party A hereby agrees to grant and Party B hereby agree to accept the right to use the intellectual property in PRC. | Given the context, answer the question that follows |
This means that if Lender brings a lawsuit, Lender may sue any one or more of the Grantors. | interpretations | Given the provision, provide with the correct label for the given provision |
Prior to the Effective Date, Seller has caused to be delivered to Purchaser, with respect to each Facility, a standard form commitment or preliminary title report (each a “ Title Commitment ”), together with copies of all instruments identified as exceptions therein (together with each Title Commitment, collectively, the “ Title Documents ”). | title documents | Given the provision, provide with the correct label for the given provision |
The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts. | miscellaneous | Given the provision, provide with the correct label for the given provision |
Each party will treat as confidential all Confidential Information of the other party, will not use the Confidential Information except as expressly set forth in this Agreement or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse, or removal of the other party’s Confidential Information, and will not disclose the Confidential Information to any third party except as those employees, affiliates and agents who are necessary and required in connection with the rights and obligations of the party under this Agreement (but in no event to any competitor of the disclosing party), and subject to confidentiality obligations at least as protective as those set forth in this Agreement. | confidentiality | Given the provision, provide with the correct label for the given provision |
The Observer shall not be entitled to attend any portion of a meeting of the Board of Directors or any committee thereof, or to receive any meeting materials in connection therewith, that would constitute, or be deemed to constitute, a waiver of the attorney-client privilege or for which the Board of Directors determines in its reasonable judgment relates directly to a conflict between the Company and McMahon or the Observer. | board observer rights | Given the provision, provide with the correct label for the given provision |
The Servicer shall pay all expenses (other than Liquidation Expenses) incurred by it in connection with its activities hereunder, including fees and disbursements of independent accountants, taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to the Noteholders and the Certificateholders. | servicer expenses | Given the provision, provide with the correct label for the given provision |
Electronic signatures shall be treated as “wet-ink” signatures for purposes of the execution hereof. | counterparts | Given the provision, provide with the correct label for the given provision |
Crumpacker is, however, waiving his right to any monetary recovery or other individual relief in connection with any charge, complaint or lawsuit filed by himself or anyone else. | no waivers | Given the provision, provide with the correct label for the given provision |
THIS PROVISION IS INTENDED TO BE A “MANDATORY” FORUM SELECTION CLAUSE AND GOVERNED BY AND INTERPRETED CONSISTENT WITH PUERTO RICO LAW. | mandatory forum selection | Given the provision, provide with the correct label for the given provision |
If, upon the conclusion of the Performance Period, RTSR for the Performance Period equals or exceeds the “Maximum” level, as set forth in the Performance Matrix, 200% of the RTSR PSUs shall become nonforfeitable. | equals or exceeds maximum | Given the provision, provide with the correct label for the given provision |
Section 10(b) of the Employment Agreement shall govern any dispute relating to or arising out of this Release. | venues | Given the provision, provide with the correct label for the given provision |
The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise Canaccord immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect any opinion, certificate, letter or other document provided to Canaccord pursuant to this Agreement. | change of circumstances | Given the provision, provide with the correct label for the given provision |
Such waiver shall in no way be construed or interpreted to limit or restrict any indemnity or other waiver made by Tenant under the terms of this Lease. | waiver of subrogation | Given the provision, provide with the correct label for the given provision |
Awards may be granted on the terms and conditions set forth in this Section 6. | general | Given the provision, provide with the correct label for the given provision |
Grantor hereby grants and conveys to Grantee, its heirs, legal representatives, successors and assigns, and to any future owner of the Hotel Parcel, a perpetual, non-exclusive easement (the “ Easement ”) in, under, upon, about, over and through the Easement Area located on the City Parcel, for the benefit of the Hotel Parcel, for the purposes of (i) drawing water from the Well across the Easement Area onto the Hotel Parcel for the purpose of irrigating the Hotel Parcel; (ii) reconstructing, removing, replacing, repairing, maintaining, operating and using the existing well, well house, irrigation pipes, underground electric utility service to the well and well house, and all fixtures, facilities and equipment related to any of the foregoing, whether now or hereafter constructed or installed (collectively, the “ Easement Facilities ”), and (iii) access in connection therewith. | grants | Given the provision, provide with the correct label for the given provision |
Borrower acknowledges that it will not have any cause of action or claim against any Independent Consultant resulting from any decision made or not made, any action taken or not taken or any advice given by such Independent Consultant in the due performance in good faith of its duties to Administrative Agent. | duties | Given the provision, provide with the correct label for the given provision |
Executive agrees to provide Company with information sufficient to determine the calculation of the Offset Income, including compensation excerpts of any employment agreement or other contract for services, Form W-2s, and any other documentation that the Company reasonably may require, and that failure to provide timely notice to the Company of Offset Income or to respond to inquiries from Company regarding any such Offset Income shall be deemed a material breach of this Agreement. | right to offset | Given the provision, provide with the correct label for the given provision |
If any governmental license or permit shall be required for the proper and lawful conduct of any business or other activity carried on in the Subleased Premises, Subtenant shall, at the Subtenant’s sole expense, procure such license or permit and promptly submit a copy thereof to the Sublandlord, and maintain such license or permit and comply with the terms and conditions thereof in all material respects during the Term. | licenses | Given the provision, provide with the correct label for the given provision |
As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a continuing security interest in, all of such Grantor’s right, title and interest in, to and under (a) (i) all Equity Interests held by it on the date hereof (including those Equity Interests listed on Schedule II) and (ii) any other Equity Interests obtained in the future by such Grantor and the certificates representing all such Equity Interests (the foregoing clauses (i) and (ii) collectively, the “Pledged Equity”), in each case including all dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Equity and all warrants, rights or options issued thereon or with respect thereto; provided that the Pledged Equity shall not include (A) any Excluded Assets (which include, for the avoidance of doubt, in the case of Secured Obligations of the U.S. Borrower and the U.S. Borrower Required Guarantors, (x) 35% of the voting Equity Interests of U.S. Midco, (y) all of the Equity Interests of the English Borrower and (z) any Equity Interests of a Subsidiary of U.S. Midco or the English Borrower) or (B) any Equity Interests in a Person that is not a wholly-owned Subsidiary of such Grantor to the extent that (1) the organizational documents or other agreements with other equity holders of such Person do not permit the pledge of such Equity Interests (so long as such prohibition was not entered into in contemplation of the applicable Grantor becoming a Grantor or at the time the applicable Grantor becomes a Grantor) or (2) the pledge of such Equity Interests (including any exercise of remedies) would result in a change of control, repurchase obligation or other materially adverse consequences to any of the Grantors or such Person, in the case of each of clauses (1) and (2), after giving effect to applicable anti-assignment provisions of the UCC or other applicable Law; (b) [reserved]; (c) subject to Section 2.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (d) subject to Section 2.06, all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b) and (c) above; and (e) all Proceeds of, and Security Entitlements in respect of, any of the foregoing (the items referred to in clauses (a) through (e) above (other than, in each case, any Excluded Assets, which shall, for the avoidance of doubt be excluded from Pledged Collateral), being collectively referred to as the “Pledged Collateral”). | pledges | Given the provision, provide with the correct label for the given provision |
The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Common Shares, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. | investment company | Given the provision, provide with the correct label for the given provision |
The Committee may appoint from its membership such subcommittees with such powers as the Committee shall determine, and may authorize one or more of its members or any agent to execute or deliver any instruments or to make any payment in behalf of the Committee. | subcommittees | Given the provision, provide with the correct label for the given provision |
Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages, and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed. | absolute obligation | Given the provision, provide with the correct label for the given provision |
There is no Lease which provides that a tenant pays rent in the form of percentage rent. | leases | Given the provision, provide with the correct label for the given provision |
Wherever possible, each provision of this Deed of Trust shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Deed of Trust shall be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Deed of Trust. | severability | Given the provision, provide with the correct label for the given provision |