Notwithstanding Section 10. 1 and 10.2, the following provisions apply to the resale of certain services.
Notwithstanding Section 10. 3.2 above, Owner will withhold from each progress payment, as retainage, ten (10) percent if the Contract Sum is at or below $400,000.00 or four and ninety-nine one hundredth (4.99) percent if the Contract Sum is above $400,000.00 of the total earned amount, or the amount set forth in Special Conditions or authorized by law.
Notwithstanding Section 10. 1.1 above, if Licensee employs more restrictive security systems, procedures and technologies for its Pay-Per-View and/or Video-On-Demand exhibition of any motion picture licensed from another feature film provider pursuant to an output or package (of more than 5 titles) agreement on a day-and- date or pre-day and date avail date basis than for a comparable (in terms of day-and-date or pre-day and date avail date) Included Program hereunder (“Special Content Protection”), then Licensee shall promptly notify Licensor in writing thereof and of any directly related terms and conditions. Licensor shall have the right (but not the obligation), exercisable within 30 days after receipt of the foregoing written notice, to match such directly related terms and conditions, and if Licensor exercises such right, this Agreement shall be deemed automatically amended to incorporate such directly related terms and conditions, including, without limitation, such Special Content Protection, only for the exhibition of such comparable Included Program (in terms of day-and-date or pre-day and date avail date). Nothing contained herein shall be construed to require Licensee to offer to Licensor a day-and-date or earlier avail date opportunity (and thus the Special Content Protection with respect thereto) if, in Licensee’s reasonable business judgment, Licensee desires to limit such avail date opportunities.
Notwithstanding Section 10. 11(a) or anything else to the contrary in this Agreement, the Company shall not be entitled to enforce specifically Parent’s, Infiniti’s, Holdco’s and Merger Sub’s obligations to consummate the Merger unless (i) all of the conditions set forth in Sections 8.01 and 8.02 (other than those conditions that by their nature are to be satisfied at the Closing (provided that such conditions would have been satisfied or waived assuming the Closing were to occur)) shall have been satisfied (or are capable of being satisfied at the Closing) or (to the extent permissible under applicable Law) waived; (ii) the Company has irrevocably confirmed in writing to Parent that (A) all of the conditions to the Company’s obligations have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions would have been satisfied or waived assuming the Closing were to occur), and (B) if specific performance is granted and the Financing is funded, then it is ready, willing and able to take the actions within its control to cause the Closing to occur; (iii) the Debt Financing has been funded or will be funded at the Closing assuming the Equity Financing is funded; and (iv) Parent, Infiniti, Holdco and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to this Agreement .
Notwithstanding Section 10. 7.1, Pieris shall have the right, but not the obligation, to bring and control an appropriate suit or other action against any person or entity engaged in any infringement action or proceeding under the Pieris IP (including the Lead Product IP) and Arising IP to the extent directly relating to a Lead Product Patent and to the Lead Product in the [***] Grant-Back Field (“[***] Infringement Action”), in its own name and entirely under its own direction and control with the prior written consent of AstraZeneca. If AstraZeneca provides such consent, the Parties shall reasonably cooperate with in the planning and execution of any such action to enforce such Patents (including the obligation to be named or joined as a party in a lawsuit, as applicable). All monies recovered upon the final judgment or settlement of any such suit or action to enforce such Patents subtracting any costs that Pieris or AstraZeneca bore in connection with such suit shall be retained in their entirety by Pieris. Even in the event that Pieris does not wish to bring an action under this Section 10.7.3, AstraZeneca still shall not have the right to bring or control any [***] Infringement Action. For avoidance of doubt, nothing in this Section shall restrict Pieris from enforcing any other Patent or Intellectual Property Rights against any Third Party in the [***] Grant-Back Field (including any Patents filed by Pieris as described in Section 10.3).
Notwithstanding Section 10. 02(a), without the consent of each Holder affected, no amendment or waiver may:
(1) change the Stated Maturity of the principal of, or any installment of interest (or Additional Amounts, if any) on, any Note;
(2) reduce the principal amount of, or premium, if any, or interest on, any Note or make the Notes payable in money other than that stated in the Note;
(3) change the place of payment of principal of, or premium, if any, or interest on, any Note;
(4) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of any Note;
(5) reduce the above-stated percentages of outstanding Notes the consent of whose Holders is necessary to modify or amend this Indenture;
(6) waive a default in the payment of principal of, premium, if any, or interest (or Additional Amounts, if any) on the Notes (except a rescission of the declaration of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes then outstanding and a waiver of the payment default that resulted from such acceleration, so long as all other existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest (or Additional Amounts, if any) on the Notes that have become due solely by such declaration of acceleration, have been cured or waived);
(7) voluntarily release a Guarantor of the Notes, except as permitted by this Indenture;
(8) reduce the percentage or aggregate principal amount of outstanding Notes the consent of whose Holders is necessary for waiver of compliance with Sections 7.02 and 7.04; or
(9) modify or change any provisions of this Indenture affecting the ranking of the Notes as to right of payment or the Guarantees thereof in any manner adverse to the Holders.
Notwithstanding Section 10. 01, a Qualified Marketmaker that acquires any Company Claims/Interests shall not (x) be required to be or become a Consenting Lender to effect any Transfer of any Company Claims/Interests by a Consenting Lender to such Qualified Marketmaker or (y) be required to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if (a) such Qualified Marketmaker acquired such Company Claims/Interests with the purpose and intent of acting as a Qualified Marketmaker, (b) such Qualified Marketmaker subsequently Transfers such Company Claims/Interests (by purchase, sale assignment, participation, or otherwise) within ten (10) Business Days of its acquisition to a transferee that is an Entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor, (c) such subsequent transferee otherwise is a Permitted Transferee under Section 10.01, and (d) such subsequent Transfer otherwise is a Permitted Transfer under Section 10.01. To the extent that a Consenting Lender is acting in its capacity as a Qualified Marketmaker, it may Transfer or participate any right, title, or interest in any Company Claims/Interests that the Qualified Marketmaker acquires from a holder of Company Claims/Interests who is not a party hereto without the requirement that the transferee be a Permitted Transferee. For the avoidance of doubt, to the extent Section 10.01 is applicable to such Transfer, the ultimate Permitted Transferee must deliver a properly executed Transfer Agreement to the Debtors in accordance with Section 15.10 unless such Permitted Transferee is a Consenting Lender as of the date of the Transfer.
Notwithstanding Section 10. 11(a) or anything else to the contrary in this Agreement, the Company shall be entitled to enforce specifically Parent’s and Merger Sub’s obligations to consummate the Merger including causing Parent and Merger Sub to enforce the terms of the Equity Commitment Letter (or any similar equity financing commitment) and the Equity Financing contemplated therein by a decree of specific performance if, and only if, (i) all of the conditions set forth in Section 8.1 and Section 8.3 (other than (x) those conditions that by their nature are to be satisfied at the Closing (or are capable of being, and are reasonably expected to be, satisfied at the Closing) or (to the extent permissible under applicable Law) waived in accordance with this Agreement or (y) those conditions that have not been satisfied as a result of any material breach of this Agreement by Parent or Merger Sub) have been satisfied at the time when the Closing would have occurred in accordance with Section 2.2, (ii) the Company has irrevocably confirmed in writing that it is ready, willing and able to consummate the transactions contemplated by this Agreement, (iii) the full amount of the Debt Financing has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iv) the Marketing Period has ended and Parent and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to this Agreement. For the avoidance of doubt, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance and payment of the Parent Termination Fee, provided that the Company may commence Actions for both in the alternative. For the avoidance of doubt, the parties hereto further agree that (1) by seeking the remedies provided for in this Section 10.11, a party shall not in any respect waive its right to seek at any time any other form of relief that may be available to a party under this Agreement in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 10.11 are not available or otherwise are not granted, and (2) nothing set forth in this Section 10.11 shall require any party hereto to institute any proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 10.11 prior or as a condition to exercising any termination right under Article IX (and pursuing the Parent Termination F...
Notwithstanding Section 10. 1.1, as between HYSEQ and DELTAGEN, all HYSEQ’s Technical Information and other of HYSEQ’s rights in and to the Proposed Genes that became Rejected Proposed Genes pursuant to Section 4.3 that were identified, or submitted to, the Steering Committee and/or DELTAGEN pursuant to Section 4.1, shall be solely owned by and remain vested in, HYSEQ.
Notwithstanding Section 10. 2, a Receiving Party may disclose Confidential Information to the extent required by a court or other governmental authority, provided that (i) the Receiving Party gives the Disclosing Party reasonable notice of the disclosure, (ii) the Receiving Party uses reasonable efforts to resist disclosing the Confidential Information, and (iii) upon request of the Disclosing Party, the Receiving Party cooperates with the Disclosing Party to obtain a protective order or otherwise limit the disclosure.
