Procedure and Effect of Termination In the event of the termination of this Agreement and the abandonment of the transactions contemplated hereby pursuant to Section 7.1 hereof, written notice thereof shall forthwith be given by the parties so terminating to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by Seller, on the one hand, or Buyer and Parent, on the other hand. If this Agreement is terminated pursuant to Section 7.1 hereof:
(a) Each party shall redeliver all documents, work papers and other materials of the other parties relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same, and all confidential information received by any party hereto with respect to the other party shall be treated in accordance with the Confidentiality Agreement and Section 5.2(c) hereof;
(b) All filings, applications and other submissions made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the agency or other person to which made; and
(c) Each party's right of termination under Section 7.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 7.1, all further obligations of the parties under this Agreement will terminate, except that the obligations in Section 5.5 and 9 will survive; provided, however, that if this Agreement is terminated by a party because of the breach of the Agreement by the other party or because one or more of the conditions to the terminating party's obligations under this Agreement is not satisfied as a result of the other party's failure to comply with its obligations under this Agreement, the terminating party's right to pursue all legal remedies, including the remedies set forth in Article VIII hereof, will survive such termination unimpaired.
NATURE AND SCOPE 4.1 This Agreement is an agreement under the terms and conditions of which the Supplier/Service Provider will arrange for the supply/provision to Transnet of the Goods/Services which meet the requirements and specifications of Transnet, the delivery of which is controlled by means of Purchase Orders to be issued by Transnet and executed by the Supplier/Service Provider in accordance with this Agreement.
4.2 Such Purchase Orders and deliveries to Transnet shall be agreed between the Parties from time to time, subject to the terms of the Schedule of Requirements/Work Order.
4.3 Each properly executed Purchase Order forms an inseparable part of this Agreement as if it were fully incorporated into the body of this Agreement.
4.4 During the period of this Agreement, both Parties can make written suggestions for amendments to the Schedule of Requirements/Work Orders in accordance with procedures set out in clause 35 [Amendment and Change Control]. A Party will advise the other Party within 14 [fourteen] Business Days, or such other period as mutually agreed, whether the amendment is acceptable.
4.5 Insofar as any term, provision or condition in the Schedule of Requirements/Work Order conflicts with a like term, provision or condition in this Agreement and/or a Purchase Order, the term or provision or condition in this Master Agreement shall prevail, unless such term or provision or condition in this Master Agreement has been specifically revoked or amended by mutual written agreement between the Parties.
4.6 Time will be of the essence and the Supplier/Service Provider will perform its obligations under this Agreement in accordance with the timeframe(s) [if any] set out in the relevant schedule, save that the Supplier/Service Provider will not be liable under this clause if it is unable to meet such obligation within the time required as a direct result of any act or omission by Transnet and it has used its best endeavours to advise Transnet of such act or omission. In the event of such delay, any time deadlines detailed in the relevant schedule shall be extended by a period equal to the period of that delay.
Capital Structure and Business If all or part of a Credit Party's Stock is pledged to Agent, that Credit Party shall not issue additional Stock. No Credit Party shall amend its charter or bylaws in a manner that would adversely affect Agent or Lenders or such Credit Party's duty or ability to repay the Obligations. No Credit Party shall engage in any business other than the businesses currently engaged in by it or businesses reasonably related thereto.
Nature and Scope of Guaranty 1.1 The Guarantor, jointly and severally (if executed by more than one person), irrevocably, absolutely and unconditionally guarantees to the Lender, its successors and assigns, the payment of the Debt and the payment and performance of all the Obligations, subject to the recourse limitations of Paragraphs 8 and 9 of the Note. This Guaranty is a primary and absolute obligation of the Guarantor.
1.2 Guarantor will make all payments hereunder in lawful money of the United States of America in immediately available funds without set-off, counterclaim or defense.
1.3 Guarantor's liability hereunder shall remain unchanged irrespective of any invalidity, illegality or unenforceability of any other guaranty, pledge, assignment or other security for the Debt or Obligations, and without regard to any claim, counterclaim, set-off or defense which Borrower, any other guarantor, surety or obligor might be privileged to assert with respect to the validity, legality or enforceability of the Debt or Obligations and irrespective of any present or future law or order of any government or any agency thereof purporting to reduce, amend or otherwise affect any obligation of the Borrower or of any other guarantor, surety or other obligor or to vary the terms of payment of the Debt or the terms of any of the Obligations. If for any reason whatsoever (including but not limited to ultra xxxxx, lack of authority, illegality, force majeure, act of God or impossibility) the Debt or the Obligations cannot be enforced against Borrower, such unenforceability shall in no manner affect the liability of Guarantor hereunder and Guarantor shall be liable hereunder notwithstanding that Borrower may not be liable for such Debt or such Obligations.
1.4 The obligations of the Guarantor hereunder are independent of the obligations of the Borrower relative to the Debt and Obligations, and a separate action or actions for payment, damages or performance may be brought and prosecuted against Guarantor, or any of them should there be more than one, regardless of whether an action is or could be brought against Borrower, any security for the Debt and/or any of the Obligations or any other party obligated to pay the Debt and/or pay or perform any of the Obligations. Guarantor will not be privileged to assert, and hereby waives the right to assert, in any action(s) by Lender against Guarantor any defense, set-off or counterclaim which Borrower or any other obligor might then be privileged to assert. Guarantor acknowledges and agrees that, as between Guarantor and the Lender, the Debt and Obligations guaranteed hereunder may be declared to be due and payable for purposes of this Guaranty notwithstanding any stay, injunction or other prohibition arising from the filing of a voluntary or an involuntary bankruptcy petition by or against Borrower, or otherwise, which may prevent or delay any such declaration as against the Borrower. In addition, in the event that Borrower does not or is unable so to pay the Debt or perform the Obligations for any reason, including, without limitation, liquidation, dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment for the benefit of creditors, sale of all or substantially all assets, reorganization, arrangement, composition, or readjustment of, or other similar proceedings affecting the status, composition, identity, existence, assets or obligations of Borrower, or the disaffirmance or termination of any of the Debt or Obligations in or as a result of any such proceeding, Guarantor shall pay the Debt and perform the Obligations and no such occurrence shall in any way affect Guarantor's obligations hereunder.
1.5 If any claim is ever made upon Lender for repayment or recovery of any amount received by Lender in payment or on account of the Debt and/or any of the Obligations by virtue of such amount having been a preference under applicable bankruptcy laws or for any other reason and Lender repays all or part of said amount pursuant to any judgment, decree or order of any court or administrative body having jurisdiction over Lender or any of its property or any settlement or compromise of any such claim effected by Lender with any such claimant (including but not limited to the Borrower or any other guarantor), then any such judgment, decree, order, settlement or compromise shall be binding upon the Guarantor, and, notwithstanding any prior satisfaction or cancellation of this Guaranty, of the Note or any other instrument evidencing the Debt and any of the Obligations, this Guaranty shall continue to be effective or shall be automatically reinstated, as the case may be, and the Guarantor shall be and remain liable to Lender hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by Lender. Such amount shall be paid by Guarantor to Lender on demand.
1.6 This Guaranty shall automatically remain in effect for a period of one hundred (100) days after the date on which all of the Debt and Obligations are last fully paid and performed, and, if no bankruptcy petition is filed against Borrower within ninety (90) days after such date, then, in that event this Guaranty shall be deemed to have been canceled as of the aforesaid date on which all of the Debt and Obligations were last fully paid and performed, subject to being automatically reinstated for the reasons stated in Subsection 1.5 above. If, however, a bankruptcy petition is filed by or against the Borrower during said ninety (90) day period, this Guaranty shall continue in effect unless and until a final, non-appealable decision by a court of competent jurisdiction has been rendered or an agreement has been entered or reached pursuant to which Lender shall be entitled to retain all monies paid by Borrower to Lender. If Lender is obligated to return to the Borrower, to the estate of the Borrower or to a bankruptcy trustee for the Borrower any monies previously paid by the Borrower, then this Guaranty shall continue in effect and Guarantor, as provided in Subsection 1.5 above, shall continue to be liable to Lender for repayment of such monies.
BUSINESS STRUCTURE AND ASSIGNMENTS 5.17.1 Contractor shall not assign this Agreement at law or otherwise or dispose of all or substantially all of its assets without the Director’s prior written consent. Nothing in this clause, however, prevents the assignment of accounts receivable or the creation of a security interest under Section 9.406 of the Texas Business & Commerce Code. In the case of such an assignment, Contractor shall immediately furnish the Director and CPO with proof of the assignment and the name, telephone number, and address of the Assignee and a clear identification of the fees to be paid to the Assignee.
5.17.2 Contractor shall not delegate any portion of its performance under this Agreement without the Director’s prior written consent.
Cure and Default An Interconnection Party that commits a Breach and does not take steps to cure the Breach pursuant to this Section 15.4 is in Default of this Appendix 2 and of the Interconnection Service Agreement.
Covenants and Agreements as Independent Agreements Each of the covenants and agreements that is set forth in this Agreement shall be construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause of action of the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.
No Construction as Employment Agreement Nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Company or any of its subsidiaries.
Preservation of Corporate Existence and Related Matters Except as permitted by Section 10.4, preserve and maintain its legal existence and all material rights, franchises, licenses and privileges and qualify and remain qualified as a foreign corporation and authorized to do business in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.
Effect of Change of Control Notwithstanding the other provisions of Paragraph 9.3, in the event that: (i) the Company terminates the Executive’s employment without Cause in anticipation of, or pursuant to a notice of termination delivered to the Executive within 24 months after, a Change in Control; (ii) the Executive terminates his employment for Good Reason pursuant to a notice of termination delivered to the Company in anticipation of, or within 24 months after, a Change in Control; or (iii) the Company fails to renew this Agreement in anticipation of, or within 24 months after, a Change of Control, the Company shall have no further obligation to the Executive under this Agreement or otherwise, except the Executive shall be entitled to receive the Accrued Obligations and the following benefits:
(a) the Company shall pay to the Executive, within 30 days following the Executive’s Separation from Service (as defined below), a lump-sum cash amount equal to: (i) two times the sum of (A) his Salary then in effect and (B) 75% of his then current Salary; plus (ii) a bonus for the then current fiscal year equal to 75% of his Salary (irrespective of whether performance objectives have been achieved); plus (iii) if such notice is given within the first 12 months after the date first set forth above, then, the Salary the Executive should have been paid from the date of termination through the end of such 12 month period, provided, however, that in the event of a termination for Good Reason pursuant to Clause Paragraph 15.1(h)(ii), the annual salary used for computation under this Paragraph 9.4(a) shall be the one in effect prior to the reduction referred to in Paragraph 15.1(h)(ii); and
(b) during the portion, if any, of the 24-month period (unless otherwise limited by COBRA or similar state law) commencing on the date of the Executive’s Separation from Service (as defined below) that the Executive is eligible to elect and elects to continue coverage for himself and his eligible dependents under the Company’s or an affiliate’s group heath plan pursuant to COBRA or similar state law, the Company shall reimburse the Executive on a monthly basis for the difference between the amount the Executive pays to effect and continue such coverage and the employee contribution amount that active senior executive employees of the Company pay for the same or similar coverage. For purposes of this Agreement, a Change of Control shall not be considered to be anticipated unless (a) the sale of the Company is being actively marketed, (b) a letter of intent outlining provisional sale terms and conditions are being negotiated and/or have been offered and/or exchanged, (c) nondisclosure/confidentiality agreements have been proposed to allow further due diligence for a prospective buyer(s) of the Company and/or its assets, and/or (d) a contract for the sale/purchase of the Company and/or its assets is being/has been negotiated or has been executed.
