Notwithstanding Section. 5.1.1 or any other provision of this Agreement to the contrary, following receipt of a Qualifying Strategic Transaction Proposal, neither Eldorado nor any of its Representatives shall be prohibited from taking, nor shall it be a breach of this Agreement for Eldorado or any of its Representatives to take, any of the following actions with respect to a Strategic Transaction Proposal: (a) engaging in discussions or negotiations with a third party which has made a proposal that satisfies the requirements of a Qualifying Strategic Transaction Proposal, (b) taking and disclosing to the Shareholders a position contemplated by Rule 14e-2 under the Exchange Act or otherwise making disclosure of the Qualifying Strategic Transaction Proposal to the Shareholders, (c) taking any of the actions described in Section 5.2.2 or (d) subject to the terms of Article VII, terminating this Agreement. A "Qualifying Strategic Transaction Proposal" shall mean a bona fide written Strategic Transaction Proposal (which Proposal may be conditional) that (x) is delivered to the Board of Directors (whether directly or through a Representative of Eldorado), (y) identifies a price or range of values to be paid for the capital stock, assets or liabilities of Eldorado or the Bank that are to be sold or otherwise transferred pursuant to such Proposal, and (z) in the good faith determination of the Board of Directors of Eldorado, based on the advice of Eldorado's counsel and on a written opinion of Eldorado's investment bankers to the effect that such Proposal is financially more favorable to the Shareholders than the terms of the Merger (including due to a higher price or range of values offered by such Proposal), requires the Board of Directors to take (or cause Eldorado to take) one or more of the actions described in clauses (b) through (e) of the immediately preceding sentence in order to comply with the Board of Directors' fiduciary duties owed to the Shareholders.
Notwithstanding Section. 11.2.1, in the event that the Sandoz Parties are unable to perform any of their respective obligations under this Agreement as a result of any interruption of the Supply Chain or manufacturing capability for the Product, including as a result of any action taken or threatened by the FDA or other Regulatory Authority (each such event a "SUPPLY INTERRUPTION"), and such inability to perform hereunder would otherwise constitute a breach of a material provision of this Agreement, and such breach is not cured within [**] following receipt by Sandoz (on behalf of the Sandoz Parties) of written notice from Momenta of such breach, such Supply Interruption shall not be considered a breach of this Agreement provided that Sandoz (on behalf of the Sandoz Parties) provides the JSC with written notice and evidence, in form and substance reasonably satisfactory to the JSC, that the alleged breach is as a result of a Supply Interruption within [**] following receipt by Sandoz (on behalf of the Sandoz Parties) from Momenta of notice of such alleged breach (a "SUPPLY INTERRUPTION NOTICE"). Such Supply Interruption Notice shall extend the [**] cure period set forth in Section 11.2.1 in accordance with the following procedure: (a) EXECUTION COPY Sandoz (on behalf of the Sandoz Parties) shall furnish to the JSC a written plan (the "SUPPLY CONTINUATION PLAN") within [**] following the JSC's receipt of the Supply Interruption Notice setting forth the actions that the Sandoz Parties shall take to cure the Supply Interruption as soon as commercially possible following the occurrence of the Supply Interruption; (b) the Supply Continuation Plan shall be subject to the review and approval of the JSC, which shall not be unreasonably withheld, conditioned or delayed; (c) following the JSC's review and approval of the Supply Continuation Plan, such plan may be amended or modified with the prior consent and approval of the JSC, which shall approve any reasonable request by the Sandoz Parties for such an amendment or modification; and (d) the Sandoz Parties shall not be considered in breach of this Agreement under Section 11.2.1 as a result of the Supply Interruption if the Supply Continuation Plan is approved by the JSC and the Sandoz Parties use Commercially Reasonable Efforts to execute the Supply Continuation Plan.
Notwithstanding Section. 8.6.1 above and in addition to the right of a Limited Partner not to pay a portion of such Limited Partner's Committed Capital under certain circumstances pursuant to Section 3.2.2 above, if any Limited Partner provides the General Partner with an opinion of counsel satisfactory to the General Partner that in such counsel's reasonable opinion, (a) ERISA, the Bank Holding Company Act of 1956, as amended, or any similar legislation, or any federal or state legislation applicable to governmental pension plans, or regulations thereunder, shall require such Limited Partner (hereinafter sometimes referred to as a "Regulated Limited Partner") to divest its interest in the Partnership prior to dissolution of the Partnership, (b) such Limited Partner's continued investment in the Partnership is contrary to such laws or regulations, (c) the assets of the Partnership may be deemed to constitute the assets of such Limited Partner under ERISA, or (d) the trustees or other fiduciaries of such Limited Partner may be deemed under ERISA to have delegated investment discretion over plan assets (as defined by ERISA) to any Person that is not an investment manager (as defined by ERISA), the General Partner shall use reasonable efforts to seek a buyer or buyers (which may be other Limited Partners) for the remainder of the interest held by such Limited Partner or shall seek to make such changes in the Partnership or its operation so as to comply with such laws or regulations; provided, however, the General Partner shall not make any changes which it determines not to be in the best interests of the Partnership or a majority in interest of the Limited Partners, or if the General Partner determines that changes are not necessary in order to comply with such laws or regulations. If no buyer is found for all of such Limited Partner's interest in the Partnership and changes, if any, made by the General Partner are not reasonably satisfactory to such Limited Partner, upon request of such Limited Partner, the General Partner shall consent to the withdrawal of such Limited Partner from the Partnership pursuant to this Section 8.6.
Notwithstanding Section. 17.1, in the event that this Agreement is transferred or sold with all or substantially all of a Party’s assets, stock or business, or that Party is merged, consolidated or combined with or into another entity or acquires another entity as provided for in Section. 17.1, and (a) that entity holds the rights to a competing product, as that term is defined in Section. 3.4; or, (b) the other Party acting reasonably cannot continue in this contractual relationship with this new entity,, then either Party has three (3) months to give notice to the other Party of its intent to terminate the Agreement, such termination to be effective sixty (60) days after receipt of notice of termination.
Notwithstanding Section. 8.4.1, Quotient shall remain liable to OCD to the extent provided in Section 8.4.4 as appropriate for any manufacturing or packaging defect that subsequently is discovered which renders the Instrument unsaleable or non-conforming with Specifications, and provided that OCD immediately informs Quotient by notice in writing of such defect and rejection of the relevant shipment not later than [***] from the date of discovery of such defect.
Notwithstanding Section. 4.1.1 above, in accordance with the provisions of the Plan, if the Optionee ceases to be a Non-Employee Director of the Corporation or a Subsidiary of the Corporation by reason of Disability (as defined in Section 4.3.2 below), the unexercised portion of any Option held by such Optionee at that time will become immediately vested and will be exercisable until terminated in accordance with Section 4.3 below.
Notwithstanding Section. 4.2(a) above, nothing contained in this Agreement shall prohibit the Company from complying with Rules 14d-9 and 14e-2 under the Exchange Act; provided, however, that, in complying with Rules 14d-9 and 14e- 2, the Company will not make or authorize any recommendation of any Acquisition Proposal unless such proposal constitutes a Superior Proposal.
Notwithstanding Section. 1.1.1 to the contrary, if the Original Agreement is terminated by either party for any reason, including as of a result of breach by either party, all unpaid amounts provided for in SECTION 1.1.1, in addition to any other amounts that may be payable by Interplay as a result of such termination, shall be immediately due and payable, without notice, as of the date of such termination.
Notwithstanding Section. 9.6.1 hereof, if in the good faith judgment of the Purchaser, the supplements or amendments to the Schedules, individually or in the aggregate, materially and adversely affect either (i) the value of the Business or (ii) the Purchaser's ability to operate the Business substantially as it has been operated by Boise Cascade, and such affect is greater than $10 million, then in such event, the parties shall negotiate in good faith for a period of 30 days in respect of an adjustment in the Purchase Price, and if the parties are unable to reach agreement on such an adjustment, the parties shall jointly retain an arbitrator to act as a binding arbitrator of such dispute. The results of such arbitration shall be final and binding upon the parties provided however, that (i) if the arbitration award is less than $10 million, there shall be no adjustment to the Purchase Price; (ii) if the arbitrator's award is greater than $10 million and less than $40 million, the Purchase Price adjustment shall be the amount of the arbitration award less $10 million; (iii) if the arbitrator's award is greater than $40 million, Boise Cascade may at its option terminate this Agreement, subject to the right of Purchaser to limit the reduction in the Purchase Price to $30 million and continue this Agreement in force.
Notwithstanding Section. 2.5.1 above, but subject to satisfaction of the requirements contained in Section 2.5.2 above, Proposed Projects which meet all of the following criteria, as determined by Agent in the exercise of its sole discretion, will be added to this Loan without the requirement of approval by the Majority Lenders:
(a) The proposed Loan Amount Project Allocation for the Proposed Project shall not exceed (i) seventy percent (70%) of the Appraised Value of the Proposed Project; nor (ii) eighty percent (80%) of the total Project Costs for such Proposed Project;
(b) The proposed Loan Amount Project Allocation for the Proposed Project shall not equal or exceed $100,000,000.00;
(c) Borrower shall have entered into Sales Contracts for Units in the Proposed Project which produce Net Sales Proceeds (Projected) in excess of seventy-five percent (75%) of the proposed Loan Amount Project Allocation for the Proposed Project;
(d) The Sales Contracts counted for purposes of determining compliance with the requirement in subparagraph 2.5.3(c) above must require Escrow Deposits of at least twenty percent (20%) of the purchase price (provided that such requirement shall not prohibit Borrower from entering into Sales Contracts that require less Escrow Deposits, although such Sales Contracts will not be counted for purposes of determining compliance with pre-sales coverage requirements in this Agreement);
(e) The Proposed Project must be a high-rise condominium tower located in the State of Florida;
(f) All governmental approvals and entitlements required for the commencement of construction shall have been obtained and issued;
(g) Borrower shall have entered into a maximum guaranteed price construction contract with a financially sound and reputable bonded contractor;
(h) If the projected Completion Date for the Proposed Project is in excess of twenty-two (22) months, Borrower shall have completed the registration with HUD. If Borrower fails to satisfy any of the criteria above, then the consent of the Majority Lenders (or the Required Lenders if the Proposed Project is located outside of the State of Florida) shall be required to add the Proposed Project.
