Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 5 contracts
Samples: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Unless Wherever from the context otherwise requiresit appears appropriate, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits each term stated in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “herebyincludes” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “include” shall be deemed to mean and be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include the their respective successors and assigns (to the extent and only to the extent permitted assigns of such Person (by the Loan Documents) or, in the case of a Governmental Authoritygovernmental Persons, Persons succeeding to the relevant functions of such Person)Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (he) whenever this Agreement refers to a number of daysunless otherwise specified herein, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained all accounting terms used herein shall have independent significance. If be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP; provided, that, if Borrower notifies Agent that Borrower requests an amendment to any Party has breached provision hereof to eliminate the effect of any representationchange occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower that the Requisite Lenders request an amendment to any provision hereof for such purpose), warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from whether any such notice is given before or mitigate the fact that the Party is after such change in breach of such representation, warranty GAAP or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arisesapplication thereof, this Agreement then such provision shall be construed interpreted on the basis of GAAP as if drafted jointly by the Parties, in effect and no presumption applied immediately before such change shall have become effective until such notice shall have been withdrawn or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities such provision amended in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoaccordance herewith.
Appears in 5 contracts
Samples: Incremental Amendment to Credit Agreement (XPO, Inc.), Refinancing Amendment (XPO, Inc.), Refinancing Amendment (XPO Logistics, Inc.)
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, including without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.), Asset Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Unless Wherever from the context otherwise requiresit appears appropriate, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits each term stated in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “herebyincludes” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “include” shall be deemed to mean and be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include the their respective successors and assigns (to the extent and only to the extent permitted assigns of such Person (by the Loan Documents) or, in the case of a Governmental Authoritygovernmental Persons, Persons succeeding to the relevant functions of such Person)Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (he) whenever this Agreement refers to a number of daysunless otherwise specified herein, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained all accounting terms used herein shall have independent significancebe interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP; provided, that, if Borrower Representative notifies Agent that Borrower Representative requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Amendment No. If 3 Effective Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower Representative that the Requisite Lenders request an amendment to any Party has breached any representationprovision hereof for such purpose), warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from whether any such notice is given before or mitigate the fact that the Party is after such change in breach of such representation, warranty GAAP or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arisesapplication thereof, this Agreement then such provision shall be construed interpreted on the basis of GAAP as if drafted jointly by the Parties, in effect and no presumption applied immediately before such change shall have become effective until such notice shall have been withdrawn or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities such provision amended in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoaccordance herewith.
Appears in 3 contracts
Samples: Revolving Loan Credit Agreement (XPO, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement and any Annexes, Exhibits and Schedules attached hereto, the context otherwise requires, following rules of interpretation shall apply:
(a) all references When calculating the period of time before which, within which or following which any act is to Articlesbe done or step taken pursuant to this Agreement, Sectionsthe date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, Schedules or Exhibits the period in question shall end on the next succeeding Business Day;
(b) Any reference in this Agreement to $ shall mean U.S. dollars;
(c) The Annexes, Exhibits and refer Schedules to Articlesthis Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. All Annexes, SectionsExhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Annex, Schedules Exhibit or Exhibits Schedule but not otherwise defined therein shall be defined as set forth in this Agreement; ;
(bd) each accounting term not otherwise defined Any reference in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include all genders, and words imparting the masculine, feminine singular number only shall include the plural and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); vice versa;
(e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case The provision of a Governmental Authority, Persons succeeding to the relevant functions Table of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respectContents, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are included for convenience of reference purposes only and shall not affect the construction or interpretation of any of the provisions of be utilized in construing or interpreting this Agreement. Each of All references in this Agreement to any “Section” are to the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution corresponding Section of this Agreement unless otherwise specified;
(f) The words such as “herein,” “hereinafter,” “hereof,” and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, “hereunder” refer to this Agreement shall be construed as if drafted jointly by a whole and not merely to a subdivision in which such words appear unless the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby context otherwise expressly waived by the Parties hereto.requires;
Appears in 2 contracts
Samples: Merger Agreement (Liberator Medical Holdings, Inc.), Merger Agreement (Rochester Medical Corporation)
Interpretive Matters. Unless Wherever from the context otherwise requiresit appears appropriate, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits each term stated in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “herebyincludes” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “include” shall be deemed to mean and be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include the their respective successors and assigns (to the extent and only to the extent permitted assigns of such Person (by the Loan Documents) or, in the case of a Governmental Authoritygovernmental Persons, Persons succeeding to the relevant functions of such Person)Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (c) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (d) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (he) whenever this Agreement refers to a number of daysunless otherwise specified herein, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained all accounting terms used herein shall have independent significance. If be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP; provided, that, if Borrower Representative notifies Agent that Borrower Representative requests an amendment to any Party has breached provision hereof to eliminate the effect of any representationchange occurring after the Restatement Date in GAAP or in the application thereof on the operation of such provision (or if Agent notifies Borrower Representative that the Requisite Lenders request an amendment to any provision hereof for such purpose), warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from whether any such notice is given before or mitigate the fact that the Party is after such change in breach of such representation, warranty GAAP or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arisesapplication thereof, this Agreement then such provision shall be construed interpreted on the basis of GAAP as if drafted jointly by the Parties, in effect and no presumption applied immediately before such change shall have become effective until such notice shall have been withdrawn or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities such provision amended in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoaccordance herewith.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined Any reference in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term a “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereofSection”, “herein”Article” or “Schedule” refers to the corresponding Section, “hereby” and similar terms shall refer Article or Schedule of or to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar daysAgreement, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenantcontext indicates otherwise. The section headings of this Agreement Articles herein are included provided for convenience of reference purposes only and shall are not intended to affect the construction or interpretation of any this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the provisions matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it means that the Party is legally obligated to do so in accordance with the terms of this Agreement. Each Any reference to a statute, rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in effect at the relevant time. Any reference to a contract or other document as of a given date means the Parties acknowledges that it has been represented by independent counsel contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular will be held to include the plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of its choice throughout all negotiations that have preceded the execution of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting not to any particular provision of this Agreement. In All accounting terms not otherwise defined herein have the event meanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement shall will be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, will arise favoring or disfavoring any Party by virtue because of the authorship of any provision of the provisions this Agreement and prior drafts of this Agreement will be disregarded in interpreting this Agreement. AccordinglyIf the date upon or by which any Party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, any rule then such date of law or any legal decision that would require interpretation of any ambiguities performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement against of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. Any representation or warranty made to the knowledge of a Party that drafted it is of no application and is hereby expressly waived by the Parties heretowill be to such Party’s actual knowledge.
Appears in 2 contracts
Samples: Tender Offer Agreement (Westinghouse Air Brake Technologies Corp), Share Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Interpretive Matters. Unless the context otherwise requires, (a) all references when a reference is made in this Agreement to Articlesan Article, SectionsSection, Schedules Exhibit or Exhibits shall mean Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;
(b) the table of contents and refer to Articles, Sections, Schedules headings for this Agreement are for reference purposes only and do not affect in any way the meaning or Exhibits interpretation of this Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this Agreement; , they are deemed to be followed by the words “without limitation” whether or not they are in fact followed by such words or words of similar import;
(bd) each accounting term the words “hereof,” “hereby”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not otherwise to any particular provision of this Agreement;
(e) all terms defined in this Agreement has have the meaning assigned to it defined meanings when used in accordance with GAAP; (c) words in the singular any certificate or plural include the singular and pluralother document made or delivered pursuant hereto, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; unless otherwise defined therein;
(f) references the definitions contained in this Agreement are applicable to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); singular as well as the plural forms of such terms;
(g) references to a Person are also to its successors and permitted assigns;
(h) the use of “or” is not intended to be exclusive unless expressly indicated otherwise; provided that the use of “or” preceded by the word “either” is intended to be exclusive;
(i) reference to “day” or “days” are to calendar days;
(j) any Person reference in this Agreement to “writing” or comparable expressions includes a reference to facsimile transmission or comparable means of communication;
(k) when a reference is made in this Agreement to “ordinary course of business,” such reference shall be deemed to mean be followed by “consistent (in scope and include amount) with past practice”;
(l) “made available” with reference to any document or information provided by Seller hereunder means made available to Buyer or its representatives in the successors sharefile data room organized and permitted assigns of such Person maintained by Buyer’s counsel, as an accommodation to Seller, or otherwise e-mailed or delivered directly to Buyer or its Representatives; and
(orm) any reference to a given Law is a reference to that Law and the rules and regulations adopted or promulgated thereunder, in each case, as amended, modified, supplemented or restated as of the case of a Governmental Authority, Persons succeeding to date on which the relevant functions of such Person); reference is made and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar daysinclude any successor thereto, unless such reference is specifically to “business daysthe context otherwise requires.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (OVERSTOCK.COM, Inc), Stock Purchase Agreement (OVERSTOCK.COM, Inc)
Interpretive Matters. Unless In this Agreement, unless otherwise specified or where the context otherwise requires, :
(a) the headings of particular provisions of this Agreement are inserted for convenience only and will not be construed as a part of this Agreement or serve as a limitation or expansion on the scope of any term or provision of this Agreement;
(b) words importing any gender shall include other genders;
(c) words importing the singular only shall include the plural and vice versa;
(d) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” for all purposes outside this Section 9.6;
(e) the words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement;
(f) references to “Articles,” “Sections,” “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules or Exhibits shall mean and refer of or to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); ;
(g) references to any Person shall be deemed to mean and include the permitted successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and ;
(h) whenever this Agreement refers to except as otherwise expressly provided herein, wherever a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there conflict exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of between this Agreement and that it has executed any other agreement referenced herein, this Agreement shall control but solely to the same extent of such conflict;
(i) references to any agreement or contract, unless otherwise stated, are to such agreement or contract as amended, modified or supplemented from time to time in accordance with consent the terms hereof and upon thereof; and PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***] DENOTES OMISSIONS.
(j) the advice of said independent counsel. The Parties parties hereto have participated jointly in the negotiation and drafting of this Agreement. In ; accordingly, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Partiesparties hereto, and no presumption or burden of proof shall arise, or rule of strict construction applied, arise favoring or disfavoring any Party party hereto by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 2 contracts
Samples: Contribution Agreement (Mascoma Corp), Contribution Agreement (Mascoma Corp)
Interpretive Matters. Unless the context otherwise requires, (a) all All references in this Agreement to Exhibits, Schedules, Articles, Sections, Schedules or Exhibits shall mean Sections and subsections refer to the corresponding Exhibits, Schedules, Articles, SectionsSections and subsections of or to this Agreement, unless expressly provided otherwise. The Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. Any capitalized terms used in any Schedule or Exhibits Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement; .
(b) each accounting term The word “including” (in its various forms) means including without limitation. The word “or” is not otherwise defined in exclusive and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement has as a whole and not to the meaning assigned to it particular provision in accordance with GAAP; (c) which such words appear. Pronouns in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender genders shall be construed to state and include any other gender, and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the masculineplural and vice versa, feminine unless the context otherwise requires. Any reference in this Agreement to $ shall mean U.S. dollars. The Parties agree that all amounts required to be paid hereunder shall be paid in United States currency and, except as otherwise expressly set forth in this Agreement, without discount, rebate or reduction and neutersubject to no counterclaim or offset, on the dates specified herein.
(c) References to any Laws shall be deemed also to include any and all rules and regulations promulgated thereunder and shall refer to such Laws, rules and regulations as amended from time to time and include any successor legislation thereto; provided, however, that, for the purposes of the representations and warranties set forth herein, with respect to any violation or alleged violation of any Laws, rules and regulations, the reference to such Laws, rules and regulations means such Laws, rules and regulations as in effect at the time of such violation or alleged violation and only such Laws, rules and regulations as to which the Governmental Body that enacted or promulgated such Laws, rules and regulations has jurisdiction over such Person, thing or matter as determined under the Laws, rules and regulations of the United States as required to be applied thereunder by a state or federal court sitting in the State of Delaware.
(d) References to an agreement, instrument or document means such agreement, instrument or document as amended, supplemented and modified from time to time to the term “including” shall mean “including, without limitation,” (i.e., extent permitted by way of example the provisions thereof and not prohibited by way of limitation); this Agreement.
(e) all references to statutes The Parties confirm that they and related regulations shall include all amendments their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the same Parties, and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to the language used in this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean be the language chosen by the Parties to express their mutual intent, and include no rule of strict construction shall be applied against any Person.
(f) The specification of any dollar amount or the successors and permitted assigns inclusion of such Person (or, any item in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); representations and (h) whenever warranties contained in this Agreement refers is not intended to a number imply that the amounts, or higher or lower amounts, or the items so included, are required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened), are within or outside of daysthe Ordinary Course of Business, such number or are or are not material, and no Party shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If use the fact of the setting of the amounts or the fact of the inclusion of any Party has breached any representation, warranty or covenant contained herein item in this Agreement in any respectdispute or controversy between the Parties as to whether any obligation, the fact that there exists another representation, warranty item or covenant relating to the same subject matter (regardless not described or included in this Agreement is material within or outside of the relative levels Ordinary Course of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included Business for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each .
(g) Disclosure of any item on the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded disclosure schedules (the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, “Schedules”) attached to this Agreement shall be construed as deemed disclosure with respect to all Sections of this Agreement if drafted jointly by the Partiesrelevance of such item is reasonably apparent from the face of the Schedules. The information contained in this Agreement, the Schedules and the Exhibits: (i) is disclosed solely for purposes of this Agreement, and no presumption information contained herein or burden therein shall be deemed to be an admission by any Party to any third party of proof shall ariseany matter whatsoever; (ii) does not constitute an admission by any Party, or rule of strict construction appliedotherwise imply, favoring that such matter is required to be disclosed or disfavoring any Party by virtue is or is not material for the purposes of the authorship this Agreement, gives or does not give rise to a Material Adverse Effect or is or is not outside the Ordinary Course of Business; (iii) may not be limited to matters required by the Agreement to be disclosed in the Schedules, and any such additional matter is disclosed for informational purposes only and does not necessarily include other matters of a similar nature; (iv) with respect to the enforceability of agreements with third parties, the existence or non-existence of third-party rights, the absence of breaches or defaults by third parties, or similar matters or statements, is intended only to allocate rights and risks among the Parties and is not intended to be admissions against interests, give rise to any inference or proof of accuracy, be admissible against any party by any Person who is not a Party, or give rise to any claim or benefit to any Person who is not a Party; (v) is not an admission that such matter actually constitutes noncompliance with, or a violation of, any Law, Permit, Contract or other topic to which such disclosure applies; and (vi) does not waive any attorney-client privilege associated with such item or information or any protection afforded by the work-product doctrine with respect to any of the provisions matters disclosed or discussed herein.
(h) For purposes of this the Agreement, the following terms have meanings set forth on the pages indicated. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the 1 Allocation 7 Assumed Liabilities 4 Attrition Rate Statement 10 Basket 29 Business 1 Closing 11 Closing Date 11 Closing Date Cash Payment 8 Closing Statement 8 Continuing Business 1 Covered Matters 33 Customer Contracts 16 Customers 19 Dispute Notice 10 Escrow Agent 31 Escrow Agreement 31 Estimated Closing RMR 7 Estimated Purchase Price 7 Excess Attrition 11 Excluded Assets 3 Excluded Liabilities 5 Final Attrition Rate 10 Final Purchase Price 9 FIRPTA Affidavit 25 Fundamental Representations 26 General Survival Date 26 Hawk 1 Indemnity Escrow Account 31 Indemnity Escrow Amount 31 Lender 37 Loss 27 Losses 27 Material Contracts 16 Nonassignable Assets 6 Non-Party that drafted it is of no application and is hereby expressly waived by the Affiliates 38 Overpayment 9 Parties hereto.1 Party 1 Personal Data 15 Personal Property Leases 13 Preliminary Closing Statement 7 Prior Owners 15 Purchase Price 7 Purchased Assets 1 Purchased Contracts 2 Purchased Intellectual Property 2 Purchaser 1 Purchaser Documents 21 Purchaser Indemnified Parties 27 Purchaser Indemnified Party 27 Purchaser’s Attrition Claim 10 Real Property Lease 14 Real Property Leases 14 Schedules 39 Seller 1 Seller Documents 12 Seller Indemnified Parties 27 Seller Indemnified Party 27 Seller Marks 23 Seller Permits 19 Seller Properties 14 Seller Property 14 Seller Retained Marks 23 Specified IP Representation 26 Survival Date 27 Tangible Assets 2 Third-Party Claim 28 Total Consideration 7 Transfer Taxes 34 Transferred Employees 24 Transition Services Agreement 25 Underpayment 9 Unresolved Claims 32 Web Site Privacy Policy 15 WIP 2 WIP Schedule 21
Appears in 2 contracts
Samples: Asset Purchase Agreement (Interface Security Systems, L.L.C.), Asset Purchase Agreement (Interface Security Systems Holdings Inc)
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, including without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “records” shall be deemed refer to mean all information that is inscribed on a tangible medium or that is stored in an electronic or other medium and include the successors and permitted assigns of such Person is retrievable in perceivable form; (h) “or, ” is used in the case inclusive sense of a Governmental Authority, Persons succeeding to the relevant functions of such Person)“and/or,” unless otherwise specified; and (hi) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business daysBusiness Days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached Breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached Breached shall not detract from or mitigate the fact that the Party is in breach Breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Patriot National, Inc.), Stock Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Sections or Schedules or Exhibits shall mean and refer are to Articles, Sections, Sections or Schedules or Exhibits in this Agreement; , (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; , (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter; , (d) whenever the term words “include,” “includes” or “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to are used in this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person they shall be deemed to mean be followed by the words “but not limited to” and include (e) the successors and permitted assigns of such Person (or, word “extent” in the case of a Governmental Authority, Persons succeeding phrase “to the relevant functions of extent” shall mean the degree to which a subject or other thing extends, and such Person); and (h) whenever this Agreement refers to a number of days, such number phrase shall refer to calendar days, unless such reference is specifically to not simply mean “business days.” if”. The Parties intend that each representation, warranty warranty, covenant and covenant agreement contained herein shall have independent significance. If any Party has breached any representation, warranty warranty, covenant or covenant agreement contained herein in any respect, the fact that there exists another representation, warranty warranty, covenant or covenant agreement relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such the first representation, warranty warranty, covenant or covenantagreement. All uses of “written” contained in Articles 2, 3 and 4 shall be deemed to include information transmitted via electronic mail, facsimile or other electronic transmission. For purposes of Article 3, information shall be deemed to have been “made available” to Buyer only if such information was posted to the electronic data room maintained by Fenwick & West LLP in a manner accessible and reviewable by Buyer at least 2 days prior to the date hereof. The section headings Parties agree that any drafts of this Agreement are included for reference purposes only and or any Transaction Document prior to the final fully executed drafts shall not affect be used for purposes of interpreting any provision of this Agreement or any Transaction Document, and each of the construction Parties agrees that no Party, Indemnifying Party or interpretation of Indemnified Party shall make any claim, assert any defense or otherwise take any position inconsistent with the foregoing in connection with any dispute or Proceeding among any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity foregoing or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring for any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoother purpose.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lin Television Corp), Stock Purchase Agreement (LIN Media LLC)
Interpretive Matters. Unless the context otherwise requires, (a) all references when a reference is made in this Agreement to Articlesan Article, SectionsSection, Schedules Exhibit or Exhibits shall mean Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated;
(b) the table of contents and refer to Articles, Sections, Schedules headings for this Agreement are for reference purposes only and do not affect in any way the meaning or Exhibits interpretation of this Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this Agreement; , they are deemed to be followed by the words “without limitation” whether or not they are in fact followed by such words or words of similar import;
(bd) each accounting term the words “hereof,” “hereby”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not otherwise to any particular provision of this Agreement;
(e) all terms defined in this Agreement has have the meaning assigned to it defined meanings when used in accordance with GAAP; (c) words in the singular any certificate or plural include the singular and pluralother document made or delivered pursuant hereto, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; unless otherwise defined therein;
(f) references the definitions contained in this Agreement are applicable to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); singular as well as the plural forms of such terms;
(g) references to a Person are also to its successors and permitted assigns;
(h) the use of “or” is not intended to be exclusive unless expressly indicated otherwise; provided that the use of “or” preceded by the word “either” is intended to be exclusive;
(i) reference to “day” or “days” are to calendar days;
(j) any Person reference in this Agreement to “writing” or comparable expressions includes a reference to facsimile transmission or comparable means of communication;
(k) when a reference is made in this Agreement to “ordinary course of business,” such reference shall be deemed to mean be followed by “consistent (in scope and include amount) with past practice”;
(l) “made available” with reference to any document or information provided by Sellers hereunder means made available to Buyer or its representatives in the successors sharefile data room organized and permitted assigns of such Person maintained by Buyer’s counsel, as an accommodation to Sellers, or otherwise e-mailed or delivered directly to Buyer or its Representatives; and
(orm) any reference to a given Law is a reference to that Law and the rules and regulations adopted or promulgated thereunder, in each case, as amended, modified, supplemented or restated as of the case of a Governmental Authority, Persons succeeding to date on which the relevant functions of such Person); reference is made and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar daysinclude any successor thereto, unless such reference is specifically to “business daysthe context otherwise requires.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (OVERSTOCK.COM, Inc), Membership Interest Purchase Agreement (OVERSTOCK.COM, Inc)
Interpretive Matters. Unless the context otherwise requires, (a) all All other undefined terms contained in any of the Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of New York to the extent the same are used or defined therein. Unless otherwise specified, references in this Agreement or any of the Appendices to Articlesa Section, Sections, Schedules subsection or Exhibits shall mean and clause refer to Articlessuch Section, Sections, Schedules subsection or Exhibits clause as contained in this Agreement; . The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement or any such Annex, Exhibit or Schedule.
(b) Wherever from the context it appears appropriate, each accounting term not otherwise defined stated in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including,” “includes” and “include” shall mean be deemed to be followed by the words “including, without limitation,” ”; references to Persons include their respective successors and assigns (i.e.to the extent and only to the extent permitted by the Loan Documents) or, by way in the case of example governmental Persons, Persons succeeding to the relevant functions of such Persons; and not by way of limitation); (e) all references to statutes and related regulations shall include all any amendments of the same and any successor or replacement statutes and regulations; . Whenever any provision in any Loan Document refers to the knowledge (for an analogous phrase) references of any Loan Party, such words are intended to “hereof”signify that such Loan Party has actual knowledge or awareness of a particular fact or circumstance or that such Loan Party, “if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance.
(c) Unless otherwise specifically provided herein”, “hereby” any accounting term used in this Agreement shall have the meaning customarily given such term in accordance with GAAP, and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person all financial computations hereunder shall be deemed computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to mean and include limit the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significanceforegoing. If any Party has breached any representation, warranty or covenant contained herein “Accounting Changes” (as defined below) occur and such changes result in any respect, a change in the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless calculation of the relative levels of specificity) that the Party has not breached shall not detract from financial covenants, standards or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities terms used in this Agreement against the Party that drafted it is of no application or any other Loan Document, then Borrower, Administrative Agent and is hereby expressly waived by the Parties hereto.Lenders agree to negotiate to amend
Appears in 1 contract
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined Any reference in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term a “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereofSection”, “herein”Article” or Schedule refers to the corresponding Section, “hereby” and similar terms shall refer Article or Schedule of or to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar daysAgreement, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenantcontext indicates otherwise. The section headings of this Agreement Articles and Sections herein are included provided for convenience of reference purposes only and shall are not intended to affect the construction or interpretation of any this Agreement. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the provisions matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a Party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with the terms of this Agreement. Each Any reference to a statute, rule or regulation is deemed also to refer to any amendments or successor legislation, rule or regulation as in effect at the relevant time. Any reference to a contract or other document as of a given date means the Parties acknowledges that it has been represented by independent counsel contract or other document as amended, supplemented and modified from time to time through such date. Any words (including initial capitalized terms defined herein) in the singular will be held to include the plural and vice versa. The terms “hereof,” “herein” and “herewith” and words of its choice throughout all negotiations that have preceded the execution of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting not to any particular provision of this Agreement. In All references herein to “$” or dollars will refer to United States dollars. All accounting terms not otherwise defined herein have the event meanings given to them in accordance with GAAP. This Agreement has been freely and fairly negotiated by the Parties. If an ambiguity or question of intent or interpretation arises, this Agreement shall will be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, will arise favoring or disfavoring any Party by virtue because of the authorship of any provision of this Agreement and prior drafts of this Agreement will be disregarded in interpreting this Agreement. If the date upon or by which any party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. Unless the context otherwise requires, (a) “or” is disjunctive but not necessarily exclusive and (b) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. If, and as often as, there is any change in the outstanding shares of Common Stock, Preferred Stock or other equity securities of Wabtec by reason of a share dividend or distribution, or stock split or other subdivision, or in connection with a combination of stock, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization or other similar capital transaction, appropriate anti-dilution adjustments consistent with the anti-dilution provisions otherwise set forth in the Certificate of Designation for the Preferred Shares will be made in the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against so as to fairly and equitably preserve the Party that drafted it is of no application rights and is hereby expressly waived by the Parties heretoobligations set forth herein.
Appears in 1 contract
Samples: Shareholders Agreement (Westinghouse Air Brake Technologies Corp)
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, including without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “records” shall be deemed refer to mean all information that is inscribed on a tangible medium or that is stored in an electronic or other medium and include the successors and permitted assigns of such Person is retrievable in perceivable form; (h) “or, ” is used in the case inclusive sense of a Governmental Authority, Persons succeeding to the relevant functions of such Person)“and/or,” unless otherwise specified; and (hi) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.Business Days” or the period of time is 5 calendar days or less, in which case it shall refer to Business Days The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached Breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached Breached shall not detract from or mitigate the fact that the Party is in breach Breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Patriot National, Inc.)
Interpretive Matters. Unless the context otherwise requiresAs used herein and in any applicable Schedules, exhibits and appendices, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (di) the term terms “include” and “including” shall mean “including, without limitation,” (i.e., by way of example are meant to be inclusive and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person shall be deemed to mean and “include without limitation” or “including without limitation”; (ii) unless the successors and permitted assigns of such Person context demands otherwise, the word “or” shall have the inclusive meaning identified with the phrase “and/or”; (oriii) the terms “his” or “her” apply to all genders; (iv) any article, section, subsection or other headings contained in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers and the recitals at the beginning of this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement; (v) any reference to a number statute or statutory provision shall mean such statute or statutory provision as it has been amended through the date as of dayswhich the particular portion of this Agreement is to take effect, such number shall refer or to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty successor statute or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant statutory provision relating to the same subject matter as the statute or statutory provision so referenced in this Agreement, and to any then applicable rules or regulations promulgated thereunder, unless otherwise provided; (regardless vi) the words “herein,” “hereof,” “hereunder” and words of the relative levels of specificity) that the Party has not breached like import shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of refer to this Agreement are included as a whole (including its Schedules, exhibits and appendices), unless the context clearly indicates to the contrary (for reference purposes only and shall not affect example, that a particular section, schedule, or exhibit is the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly intended reference); (vii) words used herein in the negotiation and drafting of this Agreement. In singular, where the event an ambiguity or question of intent arisescontext so permits, this Agreement shall be construed as if drafted jointly by deemed to include the Partiesplural and vice versa; and (viii) unless the context otherwise requires or unless otherwise provided herein, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities terms defined in this Agreement against the Party that drafted it is refer to a particular agreement, instrument, policy, Payment Method Rule or document also refer to and include all renewals, extensions, modifications, amendments and restatements of no application and is hereby expressly waived by the Parties heretosuch agreement, instrument, or document.
Appears in 1 contract
Samples: Merchant Services Agreement
Interpretive Matters. Unless Wherever from the context otherwise requiresit appears appropriate, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits each term stated in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “herebyincludes” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “include” shall be deemed to mean and be followed by the words “without limitation”; the word “or” is not exclusive; references to Persons include the their respective successors and assigns (to the extent and only to the extent permitted assigns of such Person (by the Loan Documents) or, in the case of a Governmental Authoritygovernmental Persons, Persons succeeding to the relevant functions of such Person)Persons; and all references to agreements and instruments, statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Credit Party, such words are intended to signify that such Credit Party has actual knowledge or awareness of a particular fact or circumstance or that such Credit Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance. In addition, for purposes hereof, (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) “or” is not exclusive; (c) words in the singular include the plural and words in the plural include the singular; (d) unsecured Indebtedness shall not be deemed to be subordinate or junior to Secured Indebtedness merely by virtue of its nature as unsecured Indebtedness; (e) the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of a Person dated such date prepared in accordance with GAAP; (f) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater; and (hg) whenever this Agreement refers to a number of daysunless otherwise specified herein, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained all accounting terms used herein shall have independent significance. If any Party has breached any representationbe interpreted, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement accounting determinations hereunder shall be construed as if drafted jointly by the Partiesmade, and no presumption or burden of proof all financial statements required to be delivered hereunder shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities be prepared in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoaccordance with GAAP.
Appears in 1 contract
Samples: Senior Unsecured Bridge Term Loan Credit Agreement (XPO Logistics, Inc.)
Interpretive Matters. Unless the context otherwise requires, (a) all All other undefined terms contained in any of the Loan Documents shall, unless the context indicates otherwise, have the meanings provided for by the Code as in effect in the State of New York to the extent the same are used or defined therein. Unless otherwise specified, references in this Agreement or any of the Appendices to Articlesa Section, Sections, Schedules subsection or Exhibits shall mean and clause refer to Articlessuch Section, Sections, Schedules subsection or Exhibits clause as contained in this Agreement; . The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in this Agreement or any such Annex, Exhibit or Schedule.
(b) Wherever from the context it appears appropriate, each accounting term not otherwise defined stated in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in either the singular or plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term neuter genders. The words “including”, “includes” and “include” shall mean be deemed to be followed by the words “including, without limitation,” ”; references to Persons include their respective successors and assigns (i.e.to the extent and only to the extent permitted by the Loan Documents) or, by way in the case of example governmental Persons, Persons succeeding to the relevant functions of such Persons; and not by way of limitation); (e) all references to statutes and related regulations shall include all any amendments of the same and any successor or replacement statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Loan Party, such words are intended to signify that such Loan Party has actual knowledge or awareness of a particular fact or circumstance or that such Loan Party, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance.
(c) Unless otherwise specifically provided herein, any accounting term used in this Agreement shall have the meaning customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing. If any “Accounting Changes” (as defined below) occur and such changes result in a change in the calculation of the financial covenants, standards or terms used in this Agreement or any other Loan Document, then Borrower, Administrative Agent and Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating Borrower’s and its Subsidiaries’ financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made; provided, however, that the agreement of Requisite Lenders to any required amendments of such provisions shall be sufficient to bind all Lenders. “Accounting Changes” means (a) changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions), (b) changes in accounting principles concurred in by the Borrower’s certified public accountants; (fc) references to “hereof”purchase accounting adjustments under A.P.B. 16 and/or 17 and EITF 88-16, “herein”and the application of the accounting principles set forth in FASB 109, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules establishment of reserves pursuant thereto and Exhibits hereto); any subsequent reversal (gin whole or in part) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person)reserves; and (hd) whenever the reversal of any reserves established as a result of purchase accounting adjustments. If Administrative Agent, Borrower and Requisite Lenders agree upon the required amendments, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained in this Agreement refers or in any other Loan Document shall, only to a number the extent of dayssuch Accounting Change, such number shall refer to calendar daysGAAP, unless consistently applied after giving effect to the implementation of such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significanceAccounting Change. If any Party has breached any representationAdministrative Agent, warranty or covenant contained herein in any respect, Borrower and Requisite Lenders cannot agree upon the fact that there exists another representation, warranty or covenant relating to required amendments within thirty (30) days following the same subject matter (regardless date of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation implementation of any Accounting Change, then all Financial Statements delivered and all calculations of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of financial covenants and other standards and terms in accordance with this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement other Loan Documents shall be construed as if drafted jointly by prepared, delivered and made without regard to the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretounderlying Accounting Change.
Appears in 1 contract
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, including without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); (g) references to any Person “records” shall be deemed refer to mean all information that is inscribed on a tangible medium or that is stored in an electronic or other medium and include the successors and permitted assigns of such Person is retrievable in perceivable form; (h) “or, ” is used in the case inclusive sense of a Governmental Authority, Persons succeeding to the relevant functions of such Person)“and/or,”; and (hi) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business daysBusiness Days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached Breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached Breached shall not detract from or mitigate the fact that the Party is in breach Breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties hereto.
Appears in 1 contract
Interpretive Matters. Unless the context otherwise requires, (a) all references to Articles, Sections, Schedules or Exhibits shall mean and refer to Articles, Sections, Schedules or Exhibits in this Agreement; (b) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP; (c) 22.1 The words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter gender shall include the masculine, feminine and neuter; (d) the term “including” shall mean “including, without limitation,” (i.e., by way of example and not by way of limitation); (e) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (f) references to “hereof”, “herein”, “hereby” and similar terms “hereunder” and words of like import used in this Agreement shall refer to this entire Agreement (including the Schedules as a whole and Exhibits hereto); (g) references not to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings particular provision of this Agreement Agreement.
22.2 The headings and captions herein are included for convenience of reference purposes only and shall not affect be ignored in the construction or interpretation of any of the provisions of hereof.
22.3 References to Articles, Sections or Exhibits are to Articles and Sections of, and Exhibits to, this Agreement. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution Agreement unless otherwise specified.
22.4 All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
22.5 Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement.
22.6 Where there is any inconsistency between the definitions set out in this Section 22 and that it has executed the same with consent definitions set out in any other Section or any Schedule (including the Seller Disclosure Schedule) or Exhibit, then, for the purposes of construing such Section, Schedule or Exhibit, the definitions set out in such Section, Schedule or Exhibit shall prevail.
22.7 The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends and upon the advice of said independent counsel. such phrase shall not mean “if”.
22.8 The Parties have participated jointly in the negotiation and drafting of this Agreement. In Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if jointly drafted jointly by the Parties, Parties and no presumption or burden of proof shall arise, or rule of strict construction applied, arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions provision of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities .
22.9 Any singular term in this Agreement against shall be deemed to include the Party that drafted it is of no application plural, and is hereby expressly waived any plural term the singular.
22.10 References to one gender shall include all genders.
22.11 Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the Parties heretowords “, but not limited to,”, whether or not they are in fact followed by those words or words of like import.
22.12 “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.
22.13 References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder.
22.14 References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof.
22.15 References to any Person include the successors and permitted assigns of that Person.
22.16 References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
22.17 References to “$” are to United States dollars.
22.18 When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-business day, the period in question shall end on the next succeeding business day.
22.19 The word “or” is not exclusive, unless the context otherwise requires.
22.20 Unless otherwise specified herein, undefined terms shall be given the meaning customarily applied to such terms in the railroad industry in the United States.
Appears in 1 contract
Samples: Railway Services Agreement (Fortress Transportation & Infrastructure Investors LLC)
Interpretive Matters. Unless In each of the context otherwise requiresInvestment Documents, unless a clear contrary intention appears: (a) all references to Articles, Sections, Schedules or Exhibits shall mean the singular number includes the plural number and refer to Articles, Sections, Schedules or Exhibits in this Agreementvice versa; (b) each accounting term not otherwise defined reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by such Investment Document, and reference to a Person in this Agreement has the meaning assigned to it a particular capacity excludes such Person in accordance with GAAPany other capacity or individually; (c) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, feminine or neuter reference to any gender shall include the masculine, feminine and neuterincludes each other gender; (d) reference to any agreement (including this Agreement and the term “including” shall mean “includingSchedules and Exhibits and the Appendices hereto), document or instrument means such agreement, document or instrument as amended, modified, supplemented, or replaced from time to time in accordance with the terms thereof and, if applicable, the terms hereof (and without limitation,” (i.e., by way of example and giving effect to any amendment or modification that would not by way of limitationbe permitted in accordance with the terms hereof); (e) all references reference to statutes any applicable Law means such applicable Law as amended, modified, codified or reenacted, in whole or in part, and related in effect from time to time, including rules and regulations promulgated thereunder and reference to any particular provision of any applicable Law shall be interpreted to include all amendments any revision of the same and any or successor to that provision regardless of how numbered or replacement statutes and regulationsclassified; (f) reference to any Article, Section, Schedule, Exhibit or Appendix means such Article or Section hereof or such Schedule, Exhibit or Appendix hereto; (g) “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof; (h) the terms “hereofinclude”, “herein”, “herebyincluding” and similar terms shall refer to this entire Agreement (including be construed as if followed by the Schedules and Exhibits hereto)phrase “without being limited to”; (gi) the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”; (j) relative to the determining of any period of time, “from” means “from and including” and “to” and “through” mean “to and including”; (k) “or”, “either” and “any” are not exclusive; and (l) references to any Subsidiary of a Person shall be deemed to mean and include the successors and permitted assigns of given effect only at such times as such Person (or, in the case has one or more Subsidiaries. An Event of a Governmental Authority, Persons succeeding to the relevant functions Default shall “continue” or be “continuing” until such Event of such Person); and (h) whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “business days.” The Parties intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty or covenant. The section headings of this Agreement are included for reference purposes only and shall not affect the construction or interpretation of any of the provisions of this Agreement. Each of the Parties acknowledges that it Default has been represented fully cured or waived in writing by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise, or rule of strict construction applied, favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against the Party that drafted it is of no application and is hereby expressly waived by the Parties heretoPurchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Precision Aerospace Components, Inc.)
