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The Company shall, on or before 8:30 a.m., New York City Time, on or prior to the first business day after the date of this Agreement, file a Current Report on Form 8-K describing the terms of the transactions contemplated hereby in the form required by the 1934 Act and attaching this Agreement as an exhibit to such filing (including all attachments, the “ 8-K Filing ”). | disclosure of transactions | Given the provision, provide with the correct label for the given provision |
Each Loan Party is in compliance, in all material respects, with the Bank Secrecy Act, as amended by Title III of the Patriot Act. | patriot act | Given the provision, provide with the correct label for the given provision |
In the case of any stock split, stock dividend or like change in the nature of shares of Stock covered by this Agreement, the number of shares and exercise price shall be proportionately adjusted as set forth in Section 14(a) of the 2016 Plan. | stock | Given the provision, provide with the correct label for the given provision |
If any requirements relating to the duties or obligations of Escrow Agent hereunder are not acceptable to Escrow Agent, or if Escrow Agent requires additional instructions, the Parties hereto agree to make such deletions, substitutions and additions hereto as counsel for the Parties shall mutually approve, which additional instructions shall not substantially alter the terms of this Agreement unless otherwise expressly agreed to by the Parties. | instructions | Given the provision, provide with the correct label for the given provision |
The Seller shall take any and all other actions, including actions reasonably requested by the Administrative Agent, to ensure that all amounts owing under the Pool Assets and the other Seller Assets will be deposited in the Concentration Account in a timely manner pursuant to the terms of this Agreement. | concentration account | Given the provision, provide with the correct label for the given provision |
The provisions of this Section 9.3 shall not be applicable to any Approved Mezzanine Loan. | severance documentation | Given the provision, provide with the correct label for the given provision |
If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund (including any application thereof to another amount owed to the refunding Governmental Authority) of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01 , it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. | treatment of certain refunds | Given the provision, provide with the correct label for the given provision |
Notwithstanding any other provision of the Plan or an Award Agreement, if the Committee finds by a majority vote that a Holder, before or after his or her Termination of Employment (a) committed a fraud, embezzlement, theft, felony or an act of dishonesty in the course of his or her employment by the Company or an Affiliate which conduct damaged the Company or an Affiliate or (b) disclosed trade secrets of the Company or an Affiliate, then as of the date the Committee makes its finding, any Awards awarded to the Holder that have not been exercised by the Holder (including all Awards that have not yet vested) will be forfeited to the Company. | forfeiture for cause | Given the provision, provide with the correct label for the given provision |
Executive specifically acknowledges that his employment with the Company is at-will and may be altered or terminated by either Executive or the Company at any time, with or without cause and subject to the notice requirement in paragraph E below. | at-will employment | Given the provision, provide with the correct label for the given provision |
Within the foregoing limits and subject to the terms and conditions set forth herein, the Account Parties may borrow, prepay and reborrow Loans. | loans | Given the provision, provide with the correct label for the given provision |
Executive’s salary during the Term shall be $80,000.00 per year (the “ Salary ”), payable monthly. | salary | Given the provision, provide with the correct label for the given provision |
The Parties acknowledge and agree that this Agreement constitutes a Loan Document. | incorporation by reference | Given the provision, provide with the correct label for the given provision |
1. Plaintiff Glen Ellyn Pharmacy, Inc., brings this action to secure redress for the actions of defendant ScriptPro, LLC, in sending or causing the sending of unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”), the Illinois Consumer Fraud Act, 815 ILCS 505/2 (“ICFA”), and the common law. 10. On July 19, 2011, plaintiff Glen Ellyn Pharmacy, Inc., received the unsolicited fax advertisement attached as Exhibit A on its facsimile machine. 11. Discovery may reveal the transmission of additional faxes as well. 12. Defendant ScriptPro, LLC, is responsible for sending or causing the sending of the faxes. 13. Defendant ScriptPro, LLC, as the entity whose products or services were 3 advertised in the faxes, derived economic benefit from the sending of the faxes. 14. Defendant ScriptPro, LLC, either negligently or wilfully violated the rights of plaintiff and other recipients in sending the faxes. 15. Each fax refers to a website registered to defendant ScriptPro, LLC. 16. Plaintiff had no prior relationship with defendant and had not authorized the sending of fax advertisements to plaintiff. 17. On information and belief, the faxes attached hereto were sent as part of a mass broadcasting of faxes. 18. On information and belief, defendants have transmitted similar unsolicited fax advertisements to at least 40 other persons in Illinois. 19. There is no reasonable means for plaintiff or other recipients of defendants’ unsolicited advertising faxes to avoid receiving illegal faxes. Fax machines must be left on and ready to receive the urgent communications authorized by their owners. 2. The TCPA expressly prohibits unsolicited fax advertising. Unsolicited fax advertising damages the recipients. The recipient is deprived of its paper and ink or toner and the use of its fax machine. The recipient also wastes valuable time it would have spent on something else. Unsolicited faxes prevent fax machines from receiving and sending authorized faxes, cause wear and tear on fax machines, and require labor to attempt to identify the source and purpose of the unsolicited faxes. 20. The faxes did not contain an opt-out notice that complied with 47 U.S.C. §227. 21. Plaintiff incorporates ¶¶ 1-20. 22. The TCPA makes unlawful the “use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine ...” 47 U.S.C. §227(b)(1)(C). 23. The TCPA, 47 U.S.C. §227(b)(3), provides: Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State– (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, 4 whichever is greater, or (C) both such actions. If the Court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the subparagraph (B) of this paragraph. 24. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result. Furthermore, plaintiff’s statutory right of privacy was invaded. 25. Plaintiff and each class member is entitled to statutory damages. 26. Defendants violated the TCPA even if their actions were only negligent. 27. Defendants should be enjoined from committing similar violations in the future. 36. Plaintiff incorporates ¶¶ 1-20. 37. Defendants engaged in unfair acts and practices, in violation of ICFA § 2, 815 ILCS 505/2, by sending unsolicited fax advertising to plaintiff and others. 38. Unsolicited fax advertising is contrary to the TCPA and also Illinois law. 720 ILCS 5/26-3(b) makes it a petty offense to transmit unsolicited fax advertisements to Illinois residents. 39. Defendants engaged in an unfair practice by engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to recipients of their advertising. 40. Plaintiff and each class member suffered damages as a result of receipt of the unsolicited faxes, in the form of paper and ink or toner consumed as a result. 41. Defendants engaged in such conduct in the course of trade and commerce. 42. Defendants’ conduct caused recipients of their advertising to bear the cost thereof. This gave defendants an unfair competitive advantage over businesses that advertise lawfully, such as by direct mail. For example, an advertising campaign targeting one million recipients would cost $500,000 if sent by U.S. mail but only $20,000 if done by fax broadcasting. The reason is that instead of spending $480,000 on printing and mailing his ad, the fax 7 broadcaster misappropriates the recipients’ paper and ink. “Receiving a junk fax is like getting junk mail with the postage due”. Remarks of Cong. Edward Markey, 135 Cong Rec E 2549, Tuesday, July 18, 1989, 101st Cong. 1st Sess. 43. Defendants’ shifting of advertising costs to plaintiff and the class members in this manner makes such practice unfair. In addition, defendants’ conduct was contrary to public policy, as established by the TCPA and Illinois statutory and common law. 44. Defendants should be enjoined from committing similar violations in the future. 52. Plaintiff incorporates ¶¶ 1-20. 53. By sending plaintiff and the class members unsolicited faxes, defendants converted to their own use ink or toner and paper belonging to plaintiff and the class members. 54. Immediately prior to the sending of the unsolicited faxes, plaintiff and the 9 class members owned and had an unqualified and immediate right to the possession of the paper and ink or toner used to print the faxes. 55. By sending the unsolicited faxes, defendants appropriated to their own use the paper and ink or toner used to print the faxes and used them in such manner as to make them unusable. Such appropriation was wrongful and without authorization. 56. Defendants knew or should have known that such appropriation of the paper and ink or toner was wrongful and without authorization. 57. Plaintiff and the class members were deprived of the paper and ink or toner, which could no longer be used for any other purpose. Plaintiff and each class member thereby suffered damages as a result of receipt of the unsolicited faxes. 58. Defendants should be enjoined from committing similar violations in the future. 59. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiff brings this claim on behalf of a class, consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, or such shorter period during which faxes were sent by or on behalf of defendant ScriptPro, LLC, and on or before a date 20 days following the filing of this action, (c) were sent faxes by or on behalf of defendant ScriptPro, LLC, promoting its goods or services for sale (d) that did not contain an opt-out notice such as is described in 47 U.S.C. §227. 60. The class is so numerous that joinder of all members is impractical. Plaintiff alleges on information and belief that there are more than 40 members of the class. 61. There are questions of law and fact common to the class that predominate over any questions affecting only individual class members. The predominant common questions include: a. Whether defendants engaged in a pattern of sending unsolicited fax 10 advertisements; b. Whether defendants thereby violated the TCPA; c. Whether defendants thereby committed the tort of conversion; d. Whether defendants thereby engaged in unfair acts and practices, in violation of the ICFA. e. Whether defendants thereby converted the property of plaintiff. 62. Plaintiff will fairly and adequately protect the interests of the class. Plaintiff has retained counsel experienced in handling class actions and claims involving unlawful business practices. Neither plaintiff nor plaintiff’s counsel have any interests which might cause them not to vigorously pursue this action. 63. Plaintiff’s claims are typical of the claims of the class members. All are based on the same factual and legal theories. 64. A class action is the superior method for the fair and efficient adjudication of this controversy. The interest of class members in individually controlling the prosecution of separate claims against defendants is small because it is not economically feasible to bring individual actions. 65. Management of this class action is likely to present significantly fewer difficulties that those presented in many class actions, e.g. for securities fraud. WHEREFORE, plaintiff requests that the Court enter judgment in favor of plaintiff and the class and against defendants for: a. Appropriate damages; b. An injunction against the further transmission of unsolicited fax advertising; c. Costs of suit; d. Such other or further relief as the Court deems just and proper. 11 s/ Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Michelle R. Teggelaar Julie Clark Heather A. Kolbus INTRODUCTION | win | Please read the following class action and provide the verdict of the class action either win or lose |
The release of any party under this Note shall not operate to release any other party which is liable under this Note and/or under the other Loan Documents or under the Indemnity Agreement or the Guaranty. | exercise of rights | Given the provision, provide with the correct label for the given provision |
Any such bonus earned shall be paid as soon as practicable but in no event later than the 15th day of the third month following the end of your taxable year (or the company’s taxable year, whichever is later) in which your right to receive such bonus is first determined. | annual bonus | Given the provision, provide with the correct label for the given provision |
The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. | absence of litigation | Given the provision, provide with the correct label for the given provision |
The rights of Agent under this subsection are subject to the provisions of Section 16.2(b). | discretionary rights | Given the provision, provide with the correct label for the given provision |
The Exercise Price is intended to be the Fair Market Value of the Common Stock on the Grant Date. | code section 409a | Given the provision, provide with the correct label for the given provision |
Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date and time of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be 12:00 noon, Eastern Standard Time on or about January 29, 2018, or such other mutually agreed upon time. | closing dates | Given the provision, provide with the correct label for the given provision |
No shares of Common Stock shall be issued and no certificate representing Common Stock shall be delivered until the full purchase price therefor and any withholding taxes thereon, as described in Section 5.5 , have been paid (or arrangement made for such payment to the Corporation’s satisfaction). | method of exercise | Given the provision, provide with the correct label for the given provision |
Subject to Section 5.15(a)(iii)(B) , the Borrower shall pay to the Administrative Agent, for the account of the applicable Issuing Lender and the L/C Participants, a letter of credit commission with respect to each Letter of Credit in the amount equal to the daily amount available to be drawn under such Letters of Credit (reflected as the Dollar Amount thereof) times the Applicable Margin with respect to Revolving Credit Loans that are LIBOR Rate Loans (determined, in each case, on a per annum basis). | letter of credit commissions | Given the provision, provide with the correct label for the given provision |
Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall impair any Person ’s right to indemnification hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. | claim procedures | Given the provision, provide with the correct label for the given provision |
This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. | counterparts | Given the provision, provide with the correct label for the given provision |
The Borrower agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arranger, the Banks, and their respective Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Administrative Agent, the Arranger, the Banks, or their respective Affiliates and no such duty will be deemed to have arisen in connection with any such transactions or communications. | no fiduciary duty | Given the provision, provide with the correct label for the given provision |
Borrowers, with full knowledge of constitutional rights and other rights, voluntarily waives all rights to notice and hearing prior to judgment being so confessed. | confession of judgment | Given the provision, provide with the correct label for the given provision |
For purposes of this Agreement, the Award shall vest and the Restriction Period (as defined below) shall expire as to one-third of the total number of Restricted Units originally subject to the Award on each of the first, second and third anniversaries of the Grant Date, provided that the Non-Employee Director continuously serves as a Director of the Corporation through the applicable vesting date. | restriction periods | Given the provision, provide with the correct label for the given provision |
Except as otherwise provided herein, if at any time the Company pays interest partially in cash and partially in shares of Common Stock to the holders of the Debentures, then such payment of cash shall be distributed ratably among the holders of the then-outstanding Debentures based on their (or their predecessor’s) initial purchases of Debentures pursuant to the Subscription Agreement. | interest calculations | Given the provision, provide with the correct label for the given provision |
Without limiting the generality of the foregoing, you acknowledge signing and delivering to the Employer the Confidential Information Agreement as of the Effective Date and you agree that all terms and conditions contained in such agreement, and all of your obligations and commitments provided for in such agreement, shall be deemed, and hereby are, incorporated into this Agreement as if set forth in full herein. | confidentiality | Given the provision, provide with the correct label for the given provision |
Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void. | award not transferable | Given the provision, provide with the correct label for the given provision |
Notwithstanding Section 2.2(d) herein, the Administrator may accelerate the vesting of all or a portion of the RSUs in such circumstances as it, in its sole discretion, may determine. | adjustments | Given the provision, provide with the correct label for the given provision |
The article, section and paragraph headings contained in this Agreement and in the Ancillary Agreements are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any Ancillary Agreement. | headings | Given the provision, provide with the correct label for the given provision |
Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Lead Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. | change of address | Given the provision, provide with the correct label for the given provision |
The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Act or (ii) the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 1.5 and who is an Accredited Investor (as defined in the Purchase Agreement). | restricted securities | Given the provision, provide with the correct label for the given provision |
Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement. | type of loans | Given the provision, provide with the correct label for the given provision |
The PL Capital Group and the Company agree not to, and to cause their associates, Affiliates and Representatives not to, make any public comments or statements to the press, employees and stockholders of the Company if such statement or comment is disparaging to the other party, except for truthful statements as may be required by law, regulation or valid legal process. | non-disparagement | Given the provision, provide with the correct label for the given provision |
No action, inaction or event has occurred and no state of facts exists or has existed that has resulted or will result in the exclusion from, denial of, or defense to coverage under any applicable special hazard insurance policy, PMI Policy or bankruptcy bond, irrespective of the cause of such failure of coverage. | other insurance policies | Given the provision, provide with the correct label for the given provision |
To be effective, any waiver with regard to this Agreement must be in writing and signed by the Party granting the waiver, and any such waiver shall apply only to the matter or instance specifically waived. | waivers | Given the provision, provide with the correct label for the given provision |
Each prepayment of a Syndicated Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing, except to the extent otherwise expressly provided herein. | notices | Given the provision, provide with the correct label for the given provision |
Upon consummation of the Merger, the Buyer shall have registration rights with respect to the New Note Warrant Shares, or any securities exchanged for such New Note Warrant Shares in connection with the Merger, pursuant to the terms of the Registration Rights Agreement. | registration rights | Given the provision, provide with the correct label for the given provision |
The Securities will be sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom. | offering memorandum | Given the provision, provide with the correct label for the given provision |
The DSIs shall be granted on the last day of each fiscal quarter. | grant date | Given the provision, provide with the correct label for the given provision |
All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons. | administration | Given the provision, provide with the correct label for the given provision |
During the Employment Period, the Executive’s total compensation for each fiscal year shall be the highest total compensation among all individuals employed by the Company or any Company Affiliate for such fiscal year. | base salary | Given the provision, provide with the correct label for the given provision |
In addition, Section 13.5 of the Plan is hereby incorporated by reference into this Agreement and the provisions thereof shall apply to this grant of Restricted Stock. | forfeitures | Given the provision, provide with the correct label for the given provision |
EACH BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE US BORROWERS, THE FOREIGN BORROWERS, THE FOREIGN FUNDING AGENT, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR ANY OTHER NOTE OR INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. | jury trial waiver | Given the provision, provide with the correct label for the given provision |
Within 60 days after Closing, TruGreen LLC shall prepare and deliver to the Scotts Member an allocation statement which allocates Purchase Price and other taxable consideration among the Company’s assets and is prepared in a manner consistent with the Allocation Principles and Section 1060 of the Code (the “ Allocation Statement ”). | tax matters | Given the provision, provide with the correct label for the given provision |
To the extent permitted by applicable law, and unless such notice is required pursuant to the terms hereof, the Indemnity, Guaranties or any Loan Documents, Trustor will not be entitled to any notices of any nature whatsoever from Administrative Agent and/or the Lenders except with respect to matters for which this Security Instrument or any of the other Loan Documents specifically and expressly provides for the giving of notice by Administrative Agent or any Lender to Trustor and except with respect to matters for which Administrative Agent or any Lender is required by applicable law to give notice, and Trustor hereby expressly waives the right to receive any notice from Administrative Agent and/or the Lenders with respect to any matter for which this Security Instrument does not specifically and expressly provide for the giving of notice by Administrative Agent and/or the Lenders to Trustor. | waiver of notices | Given the provision, provide with the correct label for the given provision |
THE FOREGOING EXPRESS WARRANTIES AND THOSE IN ARTICLE 4 and ARTICLE 6 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY EACH PARTY. | disclaimers | Given the provision, provide with the correct label for the given provision |
During the period that Executive is employed with the Company hereunder, Executive shall be eligible to receive discretionary annual bonuses (payable at the same time as bonuses of other executives at the Company, but in no event later than March 15 of the year following the year with respect to which such bonuses are payable). | discretionary bonus | Given the provision, provide with the correct label for the given provision |
Notwithstanding the foregoing, the “Value” of any Eligible Unvalued Asset included in the Borrowing Base that (a) has not been valued pursuant to Section 5.12(b)(ii) as of or after the Valuation Testing Date immediately preceding the Valuation Testing Date that most recently passed shall be deemed to be zero until such asset has been valued pursuant to Section 5.12(b)(ii) and (b) has been valued pursuant to Section 5.12(b)(ii) as of the Valuation Testing Date immediately preceding the Valuation Testing Date that most recently passed, but has not been valued pursuant to the Valuation Testing Date that most recently passed, shall be zero on the date that the valuation reports for Unquoted Investments for the Valuation Testing Date that most recently passed are required to be delivered, until such time as when such asset has been valued pursuant to Section 5.12(b)(ii). | failure to determine values | Given the provision, provide with the correct label for the given provision |
Each party will be entitled to present evidence and argument to the arbitrator(s). | arbitration | Given the provision, provide with the correct label for the given provision |
With respect to Incentive Stock Options, if the Plan does not contain any provision required to be included herein under section 422 of the Code, that provision shall be deemed to be incorporated herein with the same force and effect as if that provision had been set out at length herein; provided, further, that , to the extent any Option that is intended to qualify as an Incentive Stock Option cannot so qualify, that Option (to that extent) shall be deemed an Option not subject to section 422 of the Code for all purposes of the Plan. | severability | Given the provision, provide with the correct label for the given provision |
Executive acknowledges and agrees that Executive shall be bound by all ethical and professional obligations (including those with respect to conflicts and confidentiality) that arise from Executive’s provision of legal services to, and acting as legal counsel for, the Company and (as applicable) the other FINV Entities. | non-disclosure of confidential information | Given the provision, provide with the correct label for the given provision |
(a) The Second Lien Collateral Agent in its own name or in the name of others may, following contemporaneous written notice to the Grantors provided no such notice shall be required in the case of any bankruptcy or insolvency of any Grantor, after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables to verify with them to the Second Lien Collateral Agent’s satisfaction the existence, amount and terms of any Collateral consisting of Receivables. | communications with obligors | Given the provision, provide with the correct label for the given provision |
Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. | confidentiality | Given the provision, provide with the correct label for the given provision |
All documents, records, tapes and other media of any kind or description relating to the business of the Company or its Affiliates (the “Documents”), whether or not prepared by you, shall be the sole and exclusive property of the Company. | documents | Given the provision, provide with the correct label for the given provision |
Each of Landlord and Tenant represents and warrants to the other that the person executing this Fifteenth Amendment on behalf of such party is duly authorized to do so. | authority | Given the provision, provide with the correct label for the given provision |
Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Committee, or its delegate, as appropriate, and its determination shall be final. | nature of grant | Given the provision, provide with the correct label for the given provision |
All of the unvested and non-forfeited Interests shall become fully vested upon the consummation of a Change of Control, provided that the Participant has not incurred a Termination prior to such date. | change of control | Given the provision, provide with the correct label for the given provision |
For all purposes of this Security Agreement the terms used herein in capitalized form but not defined herein are used as defined in the Credit Agreement. | definitions | Given the provision, provide with the correct label for the given provision |
If, in the opinion of such counsel, such Transfer would require the filing of a registration statement under the Securities Act or would otherwise violate any Federal or state securities laws or regulations applicable to the Partnership or the Partnership Units, the General Partner may prohibit any Transfer otherwise permitted under this Section 11.3 by a Limited Partner of Partnership Interests. | opinion of counsel | Given the provision, provide with the correct label for the given provision |
Nothing set forth herein shall create or evidence a joint venture, partnership or an agency or fiduciary relationship among the Priority Secured Parties. | relationship of secured parties | Given the provision, provide with the correct label for the given provision |
The Borrower and the Servicer shall take commercially reasonable steps to ensure, and shall cause the Seller to take commercially reasonable steps to ensure, that only funds constituting payments and collections relating to Loan Assets shall be deposited into the Collection Account. | obligors | Given the provision, provide with the correct label for the given provision |
The consent to jurisdiction set forth in this Section 10(f) shall not constitute a general consent to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this Section 10(f) . | submission to jurisdiction | Given the provision, provide with the correct label for the given provision |
To the extent Energy Recovery or its assets are sold or otherwise disposed of to a direct competitor of SLB during the License Term, SLB reserves the right to terminate this Agreement. | assignments | Given the provision, provide with the correct label for the given provision |
Such written notice shall be deemed received, if mailed first class through the U. S. Postal System, three (3) business days after mailing such written notice to Executive. | termination due to disability | Given the provision, provide with the correct label for the given provision |
The failure by Indemnitee to timely notify the Company hereunder shall not relieve the Company from any liability hereunder. | notification of claims | Given the provision, provide with the correct label for the given provision |
This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under Holder. | binding effects | Given the provision, provide with the correct label for the given provision |
As such, the Parties will coordinate such activities where appropriate and as such coordination may be mutually agreed by the Parties. | general | Given the provision, provide with the correct label for the given provision |
The unaudited balance sheet and the related statements of income, stockholder’s equity and cash flow of each Credit Party as of and for the fiscal quarter ended March 31, 2010 and (in the case of Borrower) the fiscal years ended December 31, 2007, December 31, 2008 and December 31, 2009, copies of which have heretofore been furnished to each Lender, present fairly the financial condition and results of operations and cash flows of such Credit Party as of such date and for such periods. | financial statements | Given the provision, provide with the correct label for the given provision |
The Parties shall take into account the time cost of money (using the prime rate as reported from time to time in The Wall Street Journal as the discount rate) in determining Indemnification Loss for purposes of this ARTICLE XII . | interpretations | Given the provision, provide with the correct label for the given provision |
Subject to the terms and conditions of any lease or sublease pursuant to which the Owner occupies the Property and Terra Tech and the Owner exercising their discretion and authority in accordance with this Agreement, Operator shall cause such ordinary and necessary repairs to be made to the Property and all equipment and systems located on or servicing the Property, and shall cause such interior alterations and decorations to be made to the Property, as Operator shall deem necessary or advisable for the proper operation of the Business and the proper maintenance of the Property. | repairs | Given the provision, provide with the correct label for the given provision |
Each Contract with respect to each Eligible Receivable is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the Principal Amount of the Eligible Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). | enforceability of contracts | Given the provision, provide with the correct label for the given provision |
Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. | member minimum gain chargeback | Given the provision, provide with the correct label for the given provision |
The fees and expenses of the Accounting Firm shall be paid by the non-prevailing Party. | dispute resolutions | Given the provision, provide with the correct label for the given provision |
Each Loan Party shall indemnify the Administrative Agent (and any sub-agent thereof), each other Credit Party and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold harmless each Indemnitee from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 4.01 ), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Letter of Credit Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by any Credit Party to, a Controlled Account Bank or other Person which has entered into a control agreement with any Credit Party hereunder or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith, reckless disregard or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. | indemnification by the borrowers | Given the provision, provide with the correct label for the given provision |
Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.12 hereof), it is understood and acknowledged by the Company that: (i) the Purchaser has not been asked by the Company to agree, nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by the Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) the Purchaser, and counter-parties in “derivative” transactions to which the Purchaser is a party, directly or indirectly, may presently have a “short” position in the Common Stock; and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. | acknowledgment regarding purchaser’s trading activity | Given the provision, provide with the correct label for the given provision |
Subject to the other terms and conditions contained in this Agreement, the performance period for the Award commenced on July 1, 20 [XX] and shall terminate on June 30, 20 [XX] (the “ Performance Period ”). | performance periods | Given the provision, provide with the correct label for the given provision |
The Selling Agent shall be exclusively responsible for any and all its expenses. | expenses | Given the provision, provide with the correct label for the given provision |
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency proceedings. | absence of certain changes | Given the provision, provide with the correct label for the given provision |
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 participations. | participations | Given the provision, provide with the correct label for the given provision |
This [Copyright] [Patent] [Trademark] Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. | counterparts | Given the provision, provide with the correct label for the given provision |
In determining whether a Property Tax is attributable to a Tax period ending on or before the date of commencement of the BHGE Ownership Period or the Closing Date, as the case may be, or a Straddle Period (or portion thereof), any Property Tax shall be deemed a Property Tax attributable to the taxable period specified on the relevant Property Tax bill. | straddle periods | Given the provision, provide with the correct label for the given provision |
Unless the context of the Plan clearly indicates otherwise, a reference to Deferrals includes Earnings attributable to such Deferrals. | deferrals | Given the provision, provide with the correct label for the given provision |
The Employee will receive an annual base salary of Two Hundred Eighteen Thousand Dollars ($218,000), payable in accordance with the Company’s standard payroll practices in effect from time to time, and subject to applicable statutory deductions and withholding required by law (“Base Salary”). | base salary | Given the provision, provide with the correct label for the given provision |
The Managing Member is specially authorized and appointed to act as the Tax Matters Member and as the Company Representative (as applicable) and in any similar capacity under state or local Law. | tax matters member | Given the provision, provide with the correct label for the given provision |
This Amendment shall be governed by the internal law of the State of New York, without giving effect to any choice or conflict of laws provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. | governing laws | Given the provision, provide with the correct label for the given provision |
In the event of termination of the Agreement prior to the second anniversary of the Effective Date, Licensee shall pay Licensor any unpaid amounts recited in (i) within **** of such termination. | annual fees | Given the provision, provide with the correct label for the given provision |
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Company or its securities for purposes of United States Federal or state securities laws. | change of address | Given the provision, provide with the correct label for the given provision |
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NON- EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK. | consent to jurisdiction | Given the provision, provide with the correct label for the given provision |
Borrower shall not directly or indirectly create, incur or assume any indebtedness other than the Debt and unsecured trade payables incurred in the ordinary course of business relating to the ownership of the Collateral which do not exceed, at any time, a maximum aggregate amount of two percent (2%) of the original amount of the Outstanding Principal Balance and are paid within sixty (60) days of the date incurred (collectively, “ Permitted Indebtedness ”). | indebtedness | Given the provision, provide with the correct label for the given provision |
The parties hereby acknowledge and agree that ________________ shall serve as “Collateral Agent” as that term is defined in the Security Agreement and shall possess all the rights and obligations of the Collateral Agent with respect to same. | security | Given the provision, provide with the correct label for the given provision |
Nevertheless, the tax treatment of the benefits provided under the Plan or any Award is not warranted or guaranteed. | general | Given the provision, provide with the correct label for the given provision |
Nothing herein shall affect the right of Administrative Agent to serve process in any manner permitted by Law or limit the right of Administrative Agent to bring proceedings against any party in any other court or jurisdiction. | forum | Given the provision, provide with the correct label for the given provision |
Employment with the Company is for no specific period of time. | employment relationship | Given the provision, provide with the correct label for the given provision |
Except (a) as otherwise disclosed on Schedule 5.8 to the Disclosure Letter, (b) for Permitted Distributions, (c) for transactions among the Credit Parties and their Subsidiaries that are permitted by the Financing Documents, (d) customary indemnification arrangements and normal and reasonable compensation (including equity-based compensation) and reimbursement of expenses of officers and directors in the Ordinary Course of Business, and equity and debt financings with existing investors that are permitted hereunder and (e) for transactions that are disclosed to Agent in advance of being entered into and which contain terms that are no less favorable to the applicable Borrower or any Subsidiary, as the case may be, than those which might be obtained from a third party not an Affiliate of any Credit Party, no Borrower will, or will permit any Subsidiary to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of any Borrower. | transactions with affiliates | Given the provision, provide with the correct label for the given provision |
5 Documents ”. | certain terms | Given the provision, provide with the correct label for the given provision |
The Conversion Privileges set forth in this Section 2 shall remain in full force and effect immediately from the date hereof and until the Note is paid in full regardless of the occurrence of an Event of Default. | conversion privileges | Given the provision, provide with the correct label for the given provision |
No waiver of any provision hereof by any party hereto shall be deemed a waiver by any other party nor shall any such waiver by any party be deemed a continuing waiver of any matter by such party. | entire agreements | Given the provision, provide with the correct label for the given provision |
All action by the Committee shall be evidenced by a certificate signed by the chairperson or by the secretary to the Committee. | procedures | Given the provision, provide with the correct label for the given provision |