Non-Voluntary Provisions 2.10.1 This Agreement incorporates certain rates, terms and conditions that were not voluntarily negotiated by SBC-13STATE, but instead resulted from determinations made in arbitrations under Section 252 of the Act or from other requirements of regulatory agencies or state law (individually and collectively, a “Non-Voluntary Arrangement”). SBC-13STATE has identified some, but not all, of the Non-Voluntary Arrangements contained in this Agreement, by designating such provisions with asterisks. If any Non-Voluntary Arrangement is modified as a result of any order or finding by the FCC, the appropriate Commission or a court of competent jurisdiction, any Party may, by providing written notice to the other Party, require that any affected Non-Voluntary Arrangement (and any related rates, terms and conditions) be deleted or renegotiated, as applicable, in good faith and this Agreement amended accordingly. If such modifications to this Agreement are not executed within sixty (60) calendar days after the date of such notice, a Party may pursue its rights under Section 10.
2.10.2 The Parties acknowledge that the Non-Voluntary Arrangements contained in this Agreement shall not be available in any state other than the state that originally imposed/required such Non- Voluntary Arrangement. By way of example only, the Parties acknowledge that the PUC-OH’s imposition in Ohio of the Minimum Telephone Service Standards (and all terms and conditions relating thereto) shall not apply in or be “portable to" any state other than Ohio.
Supplementary Provisions 10.1. The failure or delay of any party hereof to exercise any right hereunder shall not be deemed as a waiver thereof, nor any single or partial exercise of any right preclude further exercise thereof in future by the party.
10.2. The headings of articles herein are provided for the purpose of index. Such headings shall in no event be used or affected interpretations of the terms herein.
10.3. The conclusion, effectiveness, interpretation of the agreement and the settlement of disputes in connection therewith, shall be governed by laws of Hong Kong Special Administration Region of the People’s Republic of China.
10.4. Each party hereunder concludes the agreement with legal purpose. Each term hereof is severable and independent from the others. If at any time one or more of such terms is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms hereof shall not in any way be affected thereby; and the parties shall make every endeavor to negotiate and arrive at new terms to substitute the invalid, illegal and unenforceable terms, and preserve as near as possible business purposes of the original terms.
10.5. Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form, through consultations of the parties, and obtained necessary authorization and approval by Party D and Party E respectively.
10.6. Matters not covered in the agreement shall be dealt with in a supplementary agreement, and annexed hereto. The supplementary agreement shall have the same legal force as the agreement.
10.7. The agreement is executed in six original copies, which are equally authentic. Each party hereto shall hold one copy.
10.8. The agreement shall be effective upon execution. (The reminder of this page is intentionally left blank.) [Signature page, no body text] To: Zhenfei Fan Address: 9/F., Tower C, Corporate Square, Xx.00 Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Date: January 8, 2010 Dear Zhenfei Fan As per the Purchase Option and Cooperation Agreement entered into in 2008 among us and others, we hereby designate Xx. Xxxxxxxx Xx (ID Number: 62042119830109131X) to acquire 55% of the equity interests of Shanghai Chongzhi Co., Ltd owned by you. Please carry out all necessary procedures to complete the transfer of shares within [30] days of this Notice. Yours truly, Fortune Software (Beijing) Co., Ltd. (Seal)
SUNDRY PROVISIONS Section 4.1 Subject and subordinate always to the prior rights of the First Mortgagee under the First Mortgage and to the prior rights of the Second Mortgagee under the Second Mortgage, all of the covenants, promises, stipulations and agreements of the Shipowner in this Deed of Covenants contained shall bind the Shipowner and its successors and permitted assigns and shall be binding on and inure to the benefit of the Mortgagee and its successors and permitted assigns. In the event of any assignment of the Mortgage or this Deed of Covenants by the Mortgagee in accordance with the applicable provisions of the Third Lien Indenture, any other Third Lien Note Documents and the Third Lien Intercreditor Agreement, as applicable, the term “Mortgagee” as used in this Deed of Covenants shall be deemed to mean any such successor or permitted assignee.
Section 4.2 Wherever and whenever herein any right, power or authority is granted or given to the Mortgagee, such right, power or authority may be exercised in all cases by the Mortgagee or such agent or agents as it may appoint, and the act or acts of such agent or agents when taken shall constitute the act of the Mortgagee hereunder.
Section 4.3 (a) In the event that any provision of this Deed of Covenants shall be deemed invalid or unenforceable by reason of any present or future Legal Requirements or any decision of any court of competent jurisdiction, the validity and enforceability of any other provision hereof shall not be affected thereby. Any such invalidity or unenforceability of any provision of this Deed of Covenants in any jurisdiction or nation shall not render such provision invalid or unenforceable under the Legal Requirements of any other jurisdiction or nation.
Statutory Provisions Any statutory or regulatory reference in this Agreement shall include a reference to any successor to such statute or regulation and/or revision thereof.
Penalty Provisions Failure to comply with the regulatory requirements is a violation of state law that may result in penalties up to ten thousand dollars ($10,000.00 USD) for strict liability violations, for each day in which the violation occurs. (Cal. Code Regs., tit. 13, § 2299.2; Cal. Code Regs., tit. 17, § 93118.2; Health & Saf. Code §§ 39674, 39675, 42400 et seq., 42402 et seq., and 42410.)
Preliminary Provisions The Agreement is declared to be an Enrolment Contract in terms of section 2 of the Act.
Lock-Up Provisions (a) The Subject Party hereby agrees not to, during the period commencing from the Closing and ending on the earliest of (x) six (6) months after the date of the Closing and (y) the date after the Closing on which the Purchaser consummates a liquidation, merger, capital stock exchange, reorganization, or other similar transaction with an unaffiliated third party that results in all of the Purchaser’s stockholders having the right to exchange their shares of the Purchaser Common Stock for cash, securities, or other property (the “Lock-Up Period”): (i) lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Restricted Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Restricted Securities, or (iii) publicly disclose the intention to do any of the foregoing, whether any such transaction described in clauses (i), (ii), or (iii) above is to be settled by delivery of Restricted Securities or other securities, in cash or otherwise (any of the foregoing described in clauses (i), (ii), or (iii), a “Prohibited Transfer”).
(b) The foregoing shall not apply to the transfer of any or all of the Restricted Securities (I) to any Permitted Transferee or (II) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union; provided, however, that in either of cases (I) or (II), it shall be a condition to such transfer that such transfer complies with the Securities Act of 1933, as amended, and other applicable law, and that the transferee executes and delivers to the Purchaser an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to the Subject Party, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement. As used in this Agreement, the term “Permitted Transferee” shall mean: (1) the members of the Subject Party’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse or domestic partner, the siblings of such person and his or her spouse or domestic partner, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses or domestic partners and siblings), (2) any trust for the direct or indirect benefit of the Subject Party or the immediate family of the Subject Party, (3) if the Subject Party is a trust, to the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (4) in the case of an entity, officers, directors, general partners, limited partners, members, or stockholders of such entity that receive such transfer as a distribution, or related investment funds or vehicles controlled or managed by such persons or their respective affiliates, (5) to any affiliate of the Subject Party, and (6) any transferee whereby there is no change in beneficial ownership. The Subject Party further agrees to execute such agreements as may be reasonably requested by the Purchaser that are consistent with the foregoing or that are necessary to give further effect thereto.
Customary Provisions The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the Mortgaged Property. There is no homestead or other exemption available to a Mortgagor which would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage, subject to applicable federal and state laws and judicial precedent with respect to bankruptcy and right of redemption or similar law;
Injury Pay Provisions An employee who is injured on the job during working hours and is required to leave for treatment or is sent home for such injury, shall receive payment for the remainder of his/her shift, without deduction from sick leave.
Guaranty Provisions (a) In consideration of loans, advances or disbursements heretofore or hereafter granted by the Lender to the Borrower pursuant to the Master Loan Agreement, including any existing or future Supplements thereto, or otherwise and for other good and valuable consideration, the adequacy, sufficiency and receipt of which are hereby acknowledged, Guarantor hereby absolutely, unconditionally, irrevocably (except as otherwise expressly provided in Subsection 3(k) below), completely and immediately guarantees the prompt payment of, when due, whether by acceleration or otherwise, and the prompt payment and performance of the Obligations;
(b) Guarantor further agrees to pay to the Lender, upon demand, (i) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred in attempting to cause the Obligations to be paid, performed or otherwise satisfied or in attempting to protect or preserve any property, personal or real, securing the Obligations and (ii) all losses and reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred in enforcing or endeavoring to enforce this Guaranty and any other Loan Document to which Guarantor is a party or in attempting to protect or preserve property pledged under any Loan Document to which Guarantor is a party;
(c) Guarantor expressly guarantees any sum or sums which become due and owing to the Lender as a result of any order of a bankruptcy court which requires the Lender to turn over moneys paid by the Borrower, Guarantor or any other person to the Lender on account of the Obligations. Guarantor agrees that this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment by the Borrower or any other person to the Lender on account of the Obligations is rescinded or must otherwise be returned or restored upon the insolvency or bankruptcy of the Borrower or any other obligor, guarantor, endorser or surety of the Obligations, all as though such payment had not been made;
(d) Guarantor assents to all terms and agreements heretofore or hereafter made by the Borrower or any other guarantor of the Borrower with the Lender;
(e) Guarantor hereby consents to the following and agrees that its liability will not be affected or impaired by (i) the exchange, release or surrender of any collateral to the Borrower or any other person, including any other guarantor, pledgor or grantor, or the waiver, release or subordination of any security interest, in whole or in part; (ii) the waiver or delay in the exercise of any of the Lender’s rights or remedies against the Borrower or any other person, including any other guarantor; (iii) the release of the Borrower or any other person, including any other person guaranteeing any portion of the Obligations; (iv) the renewal, extension or modification of the terms of any of the Obligations or any instrument or agreement evidencing the same, including, without limitation, an increase in the principal amount of the Obligations; and (v) the acceptance by the Lender of other guaranties;
(f) Guarantor waives acceptance hereof, notice of acceptance hereof, and notice of acceleration of and intention to accelerate the Obligations, and waives presentment, demand, protest, notice of dishonor, notice of default, notice of nonpayment or protest in relation to any instrument evidencing any of the Obligations, and any other demands and notices required by law except as such waiver may be expressly prohibited by law;
(g) This is a guaranty of payment and performance and not of collection. The liability of Guarantor under this Guaranty shall be absolute, unconditional, direct, complete and immediate and shall not be contingent upon the pursuit of any remedies against the Borrower or any other guarantor or person, nor against any security or lien available to the Lender, its successors, successors-in-title, endorsees or assigns. Guarantor waives any right to require that an action be brought against the Borrower or any other person or to require that resort be had to any security. In the event of a default under the Loan Documents, or any of them, the Lender shall have the right to enforce its rights, powers and remedies under any of the Loan Documents, in any order, and all rights, powers and remedies available to the Lender in such event shall be nonexclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and empowers the Lender upon acceleration or maturity of the Obligations or any other Obligation, at its sole discretion, and without notice to Guarantor, to exercise any right or remedy which the Lender may have or any right or remedy hereinafter granted which the Lender may have as to any security. Guarantor expressly waives any right to require any action on the part of the Lender to proceed to collect amounts due under the Master Loan Agreement or any other Loan Documents.
(h) Guarantor hereby subordinates any and all indebtedness of the Borrower now or hereafter owed to Guarantor to all obligations of the Borrower to the Lender, and agrees with the Lender that, from and after the occurrence of a default or event of default under any of the Loan Documents and for so long as such default or event of default exists, Guarantor shall not demand or accept any payment of principal or interest from any of the Borrower, shall not claim any offset or other reduction of Guarantor’s liability hereunder because of any such indebtedness and shall not take any action to obtain any of the security for the Obligations; provided, however, that, if the Lender so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for the Lender and be paid over to the Lender on account of the Obligations of the Borrower to the Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty;
(i) Guarantor hereby authorizes the Lender, without notice to Guarantor, to apply all payments and credits received from the Borrower or from any guarantor or realized from any security in such manner and in such priority as the Lender in its sole judgment shall see fit to the Obligations which are the subject of this Guaranty;
(j) The liability of Guarantor under this Guaranty shall not in any manner be affected by reason of any action taken or not taken by the Lender, which action or inaction is consented and agreed to by Guarantor, nor by the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment, or other security for any of the Obligations. No delay in making demand on Guarantor for satisfaction of its liability hereunder shall prejudice the Lender’s right to enforce such satisfaction. All of the Lender’s rights and remedies shall be cumulative and any failure of the Lender to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter;
(k) This Guaranty shall be a continuing one and shall be binding upon Guarantor regardless of how long before or after the date hereof the Obligations are incurred until this Guaranty is terminated as provided in this Guaranty or is revoked by Guarantor prospectively as to future transactions, by written notice actually received by the Lender, and such revocation shall not be effective as to any indebtedness existing or committed for under the Master Loan Agreement or the other Loan Documents at the time of actual receipt of such notice by the Lender, or as to any renewals, extensions or refinancings thereof. Guarantor agrees to rely exclusively on the right to revoke this Guaranty prospectively as to future transactions, in accordance with this Subsection 3(k), if at any time, in the opinion of the directors or officers of Guarantor, the benefits then being received by Guarantor in connection with this Guaranty are not sufficient to warrant the continuance of this Guaranty as to future indebtedness. Accordingly, so long as this Guaranty is not revoked prospectively in accordance with this Subsection 3(k), the Lender may rely conclusively on a continuing warranty, hereby made, that Guarantor continues to be benefited by this Guaranty and the Lender and the Lender shall have no duty to inquire into or confirm that the receipt of any such benefits, and this Guaranty shall be effective and enforceable by the Lender without regard to the receipt, nature or value of any such benefits; and
(l) Until the Obligations are paid finally and in full, or this Guaranty is released as provided herein, Guarantor hereby irrevocably waives any and all rights it may have to enforce any of the Lender’s rights or remedies or participate in any security now or hereafter held by the Lender, and any and all such other rights of subrogation, reimbursement, contribution or indemnification against the Borrower , or any other person having any manner of liability for the Borrower’s obligations to the Lender, whether or not arising hereunder, by agreement, at law or in equity.