Limitations and Qualifications. Notwithstanding any provision of this Section 9 to the contrary, the following limitations and qualifications shall apply to Incentive Bonuses and Partial Incentive Bonuses:
(i) Upon the occurrence of a Change of Control, the Employee shall have no right to an Incentive Bonus for any subsequent Change of Control transaction or to a Partial Incentive Bonus for any subsequent Ten Percent Or Greater Acquisition.
(ii) If, on or before December 31, 2000, there shall occur more than one Ten Percent Or Greater Acquisition prior to a Change of Control, the Employee shall be entitled to a Partial Incentive Bonus payment for each such Ten Percent Or Greater Acquisition; provided, however, that the aggregate amount of such Partial Incentive Bonus payments shall not exceed an amount equal to the Incentive Bonus that would have been payable if the Ten Percent Or Greater Acquisition having the highest Enterprise Value had been a Change of Control transaction.
(iii) If a Change of Control shall occur on or before December 31, 2000 but after one or more Ten Percent Or Greater Acquisitions, the Incentive Bonus payment payable to the Employee pursuant to Section 9.1 hereof in connection with such Change of Control shall be reduced, but not below zero, by any Partial Incentive Bonus payments payable to the Employee pursuant to this Section 9.
Limitations and Qualifications. In addition to the assumptions and qualifications set forth above, the foregoing opinions are also limited by the following qualifications:
Limitations and Qualifications. (a) Notwithstanding any other provision of this Article 6:
(i) No Seller shall be required to indemnify or hold harmless any Buyer Indemnitee pursuant to Sections 6.2(a)(i) or 6.2(b) against, or reimburse any Buyer Indemnitee for, any individual claim (or series of claims arising from the same or directly related underlying facts, events or circumstances) unless such claim (or series of claims arising from the same or directly related underlying facts, events or circumstances) involves Losses of more than $15,000. For avoidance of doubt, the entire amount of a Loss arising from a claim (or series of claims) that exceeds $15,000 shall be included for purposes of this Article 6.
(ii) No Seller shall be required to indemnify or hold harmless any Buyer Indemnitee against, or reimburse any Buyer Indemnitee for, any Losses pursuant to Sections 6.2(a)(i) or 6.2(b) (other than Losses arising as a result of the inaccuracy or breach of any representation or warranty set forth in a Fundamental Representation made by Sellers) until the aggregate amount of the Buyer Indemnitees’ Losses exceeds $345,148.00 (the “Deductible”), at which time such Buyer Indemnitee shall be entitled to indemnification for all Losses in excess of the Deductible (subject to the other provisions of this Article 6).
(iii) The cumulative aggregate indemnification obligation of Sellers under Sections 6.2(a)(i) and 6.2(b) shall in no event exceed $8,053,453.35 (the “Cap”), except in respect of Losses arising as a result of the inaccuracy or breach of any representation or warranty set forth in a Fundamental Representation made by Sellers; provided, however, that in no event shall the cumulative indemnification obligation of Sellers under Sections 6.2(a)(i) and 6.2(b) (including with respect to any inaccuracy or breach of any representation or warranty set forth in a Fundamental Representation made by Sellers) exceed an aggregate amount equal to 100% of the sum of (x) the Cash Payment and (y) an amount equal to 100% of all Earnout Amounts actually paid by Buyer to Sellers (including any amount paid in connection with a Sale of the Company) pursuant to Section 1.8 hereof.
(b) Notwithstanding any other provision in this Article 6:
(i) Buyer shall not be required to indemnify or hold harmless any Seller Indemnitee pursuant to Section 6.3(a) against, or reimburse any Seller Indemnitee for, any individual claim (or series of claims arising from the same or directly related underlying facts, events or ci...
Limitations and Qualifications. The foregoing opinion is subject to the following comments and qualifications:
1. Our opinions are subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, preference, equitable subordination, moratorium and other similar laws affecting the rights and remedies of creditors generally and to possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights. Our opinions are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law.
2. We express no opinion as to the enforceability of the indemnification or contribution provisions of the Indenture that may violate any law, rule, regulation or public policy.
3. The enforceability of provisions in the Indenture to the effect that terms may not be waived or modified except in writing may be limited under certain circumstances.
4. We note that under certain circumstances the federal courts located in the State of New York may decline to exercise subject matter jurisdiction to adjudicate a controversy relating to or arising under the Indenture, but this does not affect the ability of a party to the Indenture to bring an action relating to or arising under the Indenture in a New York State court.
5. The opinion set forth in D.10 above is based on the Internal Revenue Code of 1986, as amended, Treasury Regulations, case law and Internal Revenue Service rulings or pronouncements as they exist on the date of this opinion. These authorities are all subject to change and such change may be made with retroactive effect. We can give no assurance that after any such change, this opinion would not be different. Moreover, this opinion is not binding on the Internal Revenue Service or the courts.
6. We undertake no responsibility to update or supplement this opinion.
7. In expressing the opinions set forth in paragraphs D.4 and D.5 above:
(a) we have assumed that if the U.S. federal courts are found to be an appropriate forum for the enforcement of rights and obligations under the Indenture, that jurisdiction would be based on the diversity of the parties to the action. Diversity may not in fact exist as a basis for federal jurisdiction in an action against a party to the Indenture if any party to the action maintains a place of business in any state of the United States in which another party to the a...
Limitations and Qualifications. In addition to the assumptions set forth above, this opinion is subject to the exceptions, limitations, and qualifications set forth below:
Limitations and Qualifications. The opinions expressed above are subject to the following qualifications and limitations:
Limitations and Qualifications. The opinions expressed herein are subject to the following qualifications, exceptions and limitations:
A. Members of our firm are members of the State Bar of New York. We express no opinion as to the laws of any jurisdiction other than (i) the State of New York (excluding municipal laws), (ii) federal laws of the United States of America, (iii) the Delaware General Corporation Law and (iv) the Delaware Limited Liability Company Act and (v) and, to the limited extent described below, the UCC as enacted in the State of Delaware; provided that the laws covered by this opinion do not include federal or state securities or blue sky laws (except to the extent of our opinions in paragraphs II.G (to the extent that such paragraph addresses Regulations T, U and X) and II.H above), the Commodities Exchange Act, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, tax laws, antitrust laws, environmental laws or pension laws, or, in each case any rules or regulations thereof. With respect to matters concerning the opinions set forth herein under Article 9 of the UCC as enacted in the State of Delaware, we draw your attention to the fact that we are not admitted to the Bar of such State and are not experts in the laws of such jurisdiction, and that any such opinions are based solely upon our review of the statutory language of such Article as set forth in the CCH Secured Transactions Guide, as updated through April 19, 2013 and not on any legislative history or judicial decisions or any rules, regulations, guidelines, releases or interpretations concerning such UCC. We assume that such publication accurately sets forth the provisions of such UCC as in effect on the date hereof. In addition, our opinions in paragraphs II.F and G as to violations of law and governmental consents, filings, registrations and the like cover only laws that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Loan Parties or the Loan Documents. We call to your attention that we have not represented the Loan Parties generally in their business activities and are not familiar with the nature and extent of such activities, and that our engagement has been limited to specific matters as to which we have been consulted by the Company. Accordingly, we are not generally familiar with the Loan Parties’ legal affairs or the regulatory regimes to which any Loan Party or any of its affiliates is subject.
B. Our opini...
Limitations and Qualifications. The opinions expressed herein are subject to the following qualifications, exceptions and limitations:
A. Members of our firm are members of the State Bar of New York. We express no opinion as to the laws of any jurisdiction other than the State of New York (excluding municipal laws), federal laws of the United States of America and the Delaware General Corporation Law. In addition, our opinions in paragraphs II.D and E as to violations of law and governmental consents, filings, registrations and the like cover only laws that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Borrower or the Subject Documents.
B. Our opinions as to the valid and binding nature and enforceability of any agreement or instrument are subject to (i) the effect of any applicable bankruptcy, insolvency, fraudulent conveyance or similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Without limiting the generality of the foregoing, we note that a court might hold that a technical and nonmaterial default under the Subject Documents does not give rise to a right of the Agent and the Lenders to exercise certain remedies including, without limitation, acceleration.
C. We also express no opinion regarding: (i) any severability provision in the Subject Documents; or (ii) any provision of any Subject Documents that purports to (a) require a premium or make-whole payment in connection with a prepayment, (b) impose penalties or forfeitures, late payment charges or an increase in interest rate upon delinquency in payment or the occurrence of a default, (c) require payment of attorney’s fees, except to the extent a court determines such fees to be reasonable, (d) appoint any person as the attorney-in-fact of any other person, (e) provide that all rights or remedies of any party August 15, 2011 are cumulative and may be enforced in addition to any other right or remedy and that the election of a particular remedy does not preclude recourse to one or more remedies, (f) permit set-off in the absence of mutuality between the parties, (g) confer subject matter jurisdiction on a federal court to adjudicate any controversy in any situation in which such court would...
Limitations and Qualifications. 11.3.1 Each of the representations and warranties of the Parent and Survivor made in this Agreement or pursuant hereto and the indemnity obligations set forth in this Section 11.0 or elsewhere in this Agreement shall survive for a period of eighteen (18) months after the Closing Date; provided, however, that the representations and warranties made in Sections 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.4, 3.5, 4.1, 4.2 and 4.3 hereof (the "Excluded Representations and Warranties") and the indemnification obligations of the parties contained in Section 10.2, shall each survive indefinitely (in each case, the "Survival Period"). No claim for the recovery of Indemnifiable Damages based upon the breach of such representations and warranties or upon any of the other indemnity obligations set forth in this Agreement may be asserted by an Indemnified Party after the Survival Period; provided, however, that claims first asserted in writing pursuant to the terms of Section 11.4 within the Survival Period (whether or not the amount of any such claim has become ascertainable within such period) shall not thereafter be barred.
11.3.2 Except as may be expressly provided otherwise, Parent and/or its successors and assigns and Survivor and/or its successors and assigns, as the case may be (an "Indemnifying Party"), shall not be liable for Indemnifiable Damages of the other party until the aggregate amount of all such Indemnifiable Damages (from any source) exceeds $1,000,000, and then only to the extent the aggregate amount of Indemnifiable Damages exceed such $1,000,000 amount. The total amount of Indemnifiable Damages recoverable by the Survivor or the Parent under this Section 11.0 shall be limited to $10,000,000 (the "Indemnification Cap"). The $10,000,000 Indemnification Cap and $1,000,000 deductible referred to above shall not apply, however, to the indemnification obligations of the parties hereto
Limitations and Qualifications. The opinions expressed herein are subject to the following qualifications, exceptions and limitations:
A. We express no opinion as to the nature or extent of the rights or title of COAF, the Seller or the Owner Trustee in or to any of the Receivables.
B. The perfection of any security interest in proceeds is limited to the extent set forth in Section 9-315 of the UCC. July 26, 2001 Page 7
C. We call to your attention that the security interest of the Seller, the Owner Trustee or the Indenture Trustee in any Receivables may be subject to the rights of account debtors in respect of such Receivables, claims and defenses of such account debtors and the terms of agreements with such account debtors.
D. The rights of COAF, the Seller and the Owner Trustee to assign any Receivables consisting of claims against any government or governmental agency (including, without limitation, the United States of America or any state thereof or any agency or department thereof or of any state) may be limited by the Federal Assignment of Claims Act or similar state or local statute.
E. In the case of any Receivable payment of which is secured by other property, pursuant to Section 9-203(g) and 9-308(e) the Seller's, the Owner Trustee's and the Indenture Trustee's attachment and perfection in the applicable Receivable results in automatic attachment and perfection in the underlying security interest. We call to your attention that the automatic attachment and perfection in such underlying security interest is limited to the rights that COAF, the Seller or the Owner Trustee had prior to the transfers contemplated by the Transaction Documents.
F. We express no opinion as to any actions that may be required to be taken periodically under the UCC or other applicable law in order for the effectiveness of the Financing Statements, or the validity or perfection of any security interest, to be maintained.
G. Except as expressly stated in II.5., we express no opinion as to the priority of any security interest. Without limiting the foregoing, we express no opinion as to the priority as against any security interests or other liens as to which a UCC filing in the COAF Search Office is not required, including, without limitation, (i) liens for the payment of federal, state or local taxes or charges which are given priority by operation of law, including, without limitation, under Sections 6321 and 6323(c)(2) and (d) of the Internal Revenue Code; (ii) claims of the United States of America ...
