By AMEX Sample Clauses

By AMEX. AMEX represents and warrants that: (1) it is a corporation duly incorporated, validly existing and in good standing under the laws of New York, (2) it has all the requisite corporate power and authority under its organizational documents and the laws of New York to execute, deliver and perform its obligations under this Agreement, (3) the execution, delivery and performance of this Agreement has been duly authorized by AMEX, (4) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement, (5) it shall comply with all applicable Federal, state and local laws and regulations, and shall obtain all applicable permits and licenses, in connection with its obligations under this Agreement, and (6) it has not disclosed any Confidential Information of Vendor.

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By AMEX. AMEX agrees to indemnify, defend and hold harmless Concur and its Affiliates and their respective directors, officers, employees and agents, from and against any and all claims, suits, losses, damages and liabilities (including reasonable attorney's fees and expenses) arising out of or resulting from (a) any third party claim, suit or proceeding and any settlement thereof (including reasonable fees of attorneys and related costs), to the extent based on a claim that AMEX's intellectual property incorporated into the Co-Branded XMS Service or the marketing thereof infringes the patent, copyright, trademark, trade secret or other proprietary right of a third party, (b) the intentional or negligent act or omission of AMEX or its officers, directors, employees, contractors or agents (collectively, the "AMEX Agents") in the course of the performance of Concur's duties and obligations under this Agreement; (c) the failure of AMEX or the AMEX Agents, as the case may be, to comply with the terms of this Agreement; or (d) the failure of AMEX to comply with its obligations under any and all laws, rules or regulations applicable to AMEX.

By AMEX. AmEx agrees to indemnify, defend and hold harmless Portable and its Affiliates, and their respective directors, officers, employees and agents, from any and all claims, suits and liabilities (including reasonable attorney's fees and expenses) (a) arising out or resulting from any actual or alleged act or omission on the part of AmEx, its directors, officers, employees or agents (including Affiliates and licensees) in the marketing or selling of (i) AXI, Expense Manager, or XMS to Expense Manager Customers, and (ii) any AmEx products or services to Customers and Prospects, whether or not such acts or omissions occurred prior to the Effective Date, including without limitation, providing representations, commitments, or warranties (or failing to effectively disclaim all warranties and liabilities on behalf of Portable) to Prospects and Expense Manager Customers; and (b) of third parties arising out of or resulting from any claim, suit, or proceeding, and any damages or liability therefrom or settlement thereof (including reasonable fees of attorneys and related costs) to the extent based on a claim that AXI or Expense Manager or AmEx infringes the patent, copyright, trademark, trade secret, or other proprietary right of a third party.

By AMEX. Subject to the terms and conditions of this Content ------- Agreement, AMEX hereby grants AvantGo a nonexclusive, non-transferable, revocable, worldwide license to use AMEX's trademarks, trade names and logos set forth on Exhibit A (the "AMEX Trademarks") solely in connection with the display --------- of AMEX Channels through the Service and the marketing of the AMEX Content and AMEX Channels. Notwithstanding any other provision of this Content Agreement to the contrary, AvantGo shall not have the right to use AMEX Trademarks or to refer to AMEX directly or indirectly, in connection with any product, promotion or publication without the prior written approval of AMEX. Any prior consent of use or reference may be revoked by AMEX at any time with immediate effect. AvantGo shall comply with any usage guidelines which may be provided to AvantGo by AMEX from time to time. AvantGo shall not challenge AMEX's ownership of AMEX Trademarks or use or adopt any trademarks which might be confusingly similar to such AMEX Trademarks.

By AMEX. AmEx agrees to indemnify, defend and hold harmless Portable and its Affiliates, and their respective directors, officers, employees and agents, from any and all claims, suits and liabilities (including reasonable attorney's fees and expenses) (a) arising out or resulting from any actual or alleged act or omission on the part of AmEx, its directors, officers, employees or agents (including Affiliates and licensees) in the marketing or selling of (i) [*] and (ii) any AmEx products or services to Customers and Prospects, whether or not such acts or omissions occurred prior to the Effective Date, including without limitation, providing representations, commitments, or warranties (or failing to effectively disclaim all warranties and liabilities on behalf of Portable) to Prospects and [*] and (b) of third parties arising out of or resulting from any claim, suit, or proceeding, and any damages or liability therefrom or settlement thereof (including reasonable fees of attorneys and related costs) to the extent based on a claim that [*] or AmEx infringes the patent, copyright, trademark, trade secret, or other proprietary right of a third party. *Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

By AMEX. AMEX represents and warrants (i) it has all necessary rights, licenses and approvals required to perform its obligations hereunder; (ii) AMEX’s obligations are not in conflict with any other AMEX obligations or agreement (in writing or otherwise) with any third-party; (iii) AMEX will comply with all applicable foreign, federal, state and local laws, rules and regulations in the performance of its obligations hereunder; and (iv) AMEX will not commit any act of willful or grossly negligent misconduct that results in a breach of a right of privacy.

By AMEX. AMEX agrees to defend, indemnify, and hold harmless TRX, TRX Affiliates performing Services, and each of their respective directors, officers, employees, and agents from and against any and all third-party claims, demands, liabilities, losses and expenses, including reasonable attorneys fees, resulting from or arising out of: (i) any breach of AMEX’s representations and warranties in this Agreement; or (ii) AMEX’s failure to comply with AMEX’s obligations under any and all laws, rules or regulations applicable to AMEX under this Agreement, except to the extent such violation arises out of TRX’s obligations hereunder.

By AMEX. AMEX may, without liability to Developer, terminate this Agreement, suspend or terminate this Agreement or Developer’s access to the Developer Portal, the API Materials, and/or AMEX Platforms, in whole or in part in any of the following cases: (i) Developer or Developer Application exceeds AMEX’s API transaction limits, violates any provision of AMEX’s policies or the Developer Portal Rules, violates applicable law, or in AMEX’s determination could harm or place an undue burden on the systems or networks of AMEX or its Affiliate; (ii) Developer breaches this Agreement or any other agreement with AMEX or its Affiliate and fails to cure that breach within ten (10) days; (iii) Developer becomes insolvent, fails to pay its debts when due, dissolves or ceases to do business, files for bankruptcy or has filed against it a petition in bankruptcy; (iv) Developer fails to pay any amount due to AMEX or its Affiliate under this or any other agreement; (v) AMEX determines that it is required to terminate or suspend by law or order of a governmental agency with jurisdiction or AMEX determines that any Developer Application causes a legal or financial risk; (vi) AMEX receives complaints or support requests from AMEX Account Holders or other users regarding any Developer Application that are significantly higher in number or severity compared to other programs and AMEX determines that such complaints are attributable to Developer or a Developer Application, or Developer fails to provide adequate customer support; (vii) AMEX determines that a Developer Application infringes or misappropriates intellectual property rights of AMEX, its Affiliate, or any other party; (viii) there is a breach of confidentiality or security obligations under this Agreement or Developer otherwise tampers with, modifies, corrupts, or otherwise attempts to interfere with the security of or functionality of the Developer Portal, the AMEX Materials, or any AMEX Platform; (ix) AMEX determines that there is a high risk of fraudulent transactions or other misuse of the AMEX Materials, AMEX Platforms, or the Developer Portal; (x) AMEX otherwise has such right under the terms of this Agreement; or (xi) for any reason, with or without cause, at any time upon thirty (30) days’ notice to Developer.

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Proof of Execution by Holders Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.

Company to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet If requested by the Representatives, the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to the Representatives an “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of the Offered Shares. As used herein, the term “electronic Prospectus” means a form of Time of Sale Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representatives, that may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers of the Offered Shares; (ii) it shall disclose the same information as the paper Time of Sale Prospectus, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store and have continuously ready access to the Time of Sale Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to XXXXX or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Time of Sale Prospectus.

Execution of Amendments, Supplements or Waivers The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement or waiver, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel to the effect that the execution of such amendment, supplement or waiver has been duly authorized, executed and delivered by the Company and that, subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other laws now or hereinafter in effect affecting creditors’ rights or remedies generally and to general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity, such amendment, supplement or waiver is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.

Filing of Amendments and 1934 Act Documents The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto (including the Post-Effective Amendment) at the time it became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.

Costs of updating of registration statement If provided for in the Prospectus for a Trust, the Trustee shall pay, or reimburse to the Depositor, the expenses related to the updating of the Trust's registration statement, to the extent of legal fees, typesetting fees, electronic filing expenses and regulatory filing fees. Such expenses shall be paid from the Income Account, or to the extent funds are not available in such Account, from the Capital Account, against an invoice or invoices therefor presented to the Trustee by the Depositor. By presenting such invoice or invoices, the Depositor shall be deemed to certify, upon which certification the Trustee is authorized conclusively to rely, that the amounts claimed therein are properly payable pursuant to this paragraph. The Depositor shall provide the Trustee, from time to time as requested, an estimate of the amount of such expenses, which the Trustee shall use for the purpose of estimating the accrual of Trust expenses. The amount paid by the Trust pursuant to this paragraph in each year shall be separately identified in the annual statement provided to Unit holders. The Depositor shall assure that the Prospectus for the Trust contains such disclosure as shall be necessary to permit payment by the Trust of the expenses contemplated by this paragraph under applicable laws and regulations. The provisions of this paragraph shall not limit the authority of the Trustee to pay, or reimburse to the Depositor or others, such other or additional expenses as may be determined to be payable from the Trust as provided in this Section 6.02.

Requests for Registration (i) Subject to the following paragraphs of this Section 3(a), on or after the 180th day following the Initial Public Offering, a Demand Party shall have the right, by delivering a written notice to the Corporation, to require the Corporation to register, directly or indirectly, and pursuant to the terms of this Agreement, under and in accordance with the provisions of the Securities Act, the number of Registrable Securities requested to be so registered pursuant to the terms of this Agreement (any such written notice, a “Demand Notice” and any such registration, a “Demand Registration”); provided, however, that a Demand Notice may only be made prior to the expiration of the Coordination Committee if previously approved in writing by the Coordination Committee; provided, further that, the Corporation shall not be obligated to file a Registration Statement relating to any registration request under this Section 3(a) within a period of 180 days after the effective date of any other Registration Statement relating to any registration request under this Section 3(a) (except if the underwriters shall require a longer period, but in any event no more than 270 days). Following receipt of a Demand Notice for a Demand Registration in accordance with this Section 3(a), the Corporation shall use its reasonable best efforts to file a Registration Statement as promptly as practicable and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof. (ii) No Demand Registration shall be deemed to have occurred for purposes of this Section 3 if the Registration Statement relating thereto (x) does not become effective, (y) is not maintained effective for the period required pursuant to this Section 3, or (z) the offering of the Registrable Securities pursuant to such Registration Statement is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, in which case, such requesting holder of Registrable Securities shall be entitled to an additional Demand Registration in lieu thereof. (iii) Within 10 days after receipt by the Corporation of a Demand Notice in accordance with this Section 3(a), the Corporation shall give written notice (the “Notice”) of such Demand Notice to all other holders of Registrable Securities and shall, subject to the provisions of Section 3(b) hereof, include in such registration all Registrable Securities with respect to which the Corporation received written requests for inclusion therein within 15 days after such Notice is given by the Corporation to such holders. (iv) All requests made pursuant to this Section 3 will specify the number of Registrable Securities to be registered and the intended methods of disposition thereof. (v) The Corporation shall be required to maintain the effectiveness of the Registration Statement with respect to any Demand Registration for a period of at least 180 days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the holders of Registrable Securities are required to refrain from selling any securities included in such Registration Statement at the request of the Corporation or an underwriter of the Corporation pursuant to the provisions of this Agreement.

Filing Proofs, Certificates and Other Information Any person presenting Shares for deposit or any Owner or Holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of any American Depositary Shares, the distribution of any dividend or other distribution or of the proceeds thereof or the delivery of any Deposited Securities until that proof or other information is filed or those certificates are executed or those representations and warranties are made. As conditions of accepting Shares for deposit, the Depositary may require (i) any certification required by the Depositary or the Custodian in accordance with the provisions of the Deposit Agreement, (ii) a written order directing the Depositary to deliver to, or upon the written order of, the person or persons stated in that order, the number of American Depositary Shares representing those Deposited Shares, (iii) evidence satisfactory to the Depositary that those Shares have been re-registered in the books of the Company or the Foreign Registrar in the name of the Depositary, a Custodian or a nominee of the Depositary or a Custodian, (iv) evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental body in each applicable jurisdiction and (v) an agreement or assignment, or other instrument satisfactory to the Depositary, that provides for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property, that any person in whose name those Shares are or have been recorded may thereafter receive upon or in respect of those Shares, or, in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.

Registration Statement Amendments; Payment of Fees After the date of this Agreement and during any period in which a Prospectus relating to any Placement Securities is required to be delivered by the Sales Agent under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or any applicable similar rule), (i) the Company will notify the Sales Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any comment letter from the Commission or any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon the Sales Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Sales Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Securities by the Sales Agent (provided, however, that the failure of the Sales Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and warranties made by the Company and the Operating Partnership in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, relating to the Placement Securities or a security convertible into the Placement Securities unless a copy thereof has been submitted to the Sales Agent within a reasonable period of time before the filing and the Sales Agent has not reasonably objected thereto (provided, however, that the failure of the Sales Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and warranties made by the Company and Operating Partnership in this Agreement) and the Company will furnish to the Sales Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via XXXXX; and (iv) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act).

Trustee Action by Written Consent Without a Meeting To the extent not inconsistent with the provisions of the 1940 Act, any action that may be taken at any meeting of the Board of Trustees or any committee thereof may be taken without a meeting and without prior written notice if a consent or consents in writing setting forth the action so taken is signed by the Trustees having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all Trustees on the Board of Trustees or any committee thereof, as the case may be, were present and voted. Written consents of the Trustees may be executed in one or more counterparts. A consent transmitted by electronic transmission (as defined in Section 3806 of the DSTA) by a Trustee shall be deemed to be written and signed for purposes of this Section. All such consents shall be filed with the secretary of the Trust and shall be maintained in the Trust’s records.

Filings, Registrations and Recordings Each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.3), shall be in proper form for filing, registration or recordation.

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