Notwithstanding Section 7. 2(a), Buyer may, at its sole discretion at any time and from time to time during the term of this Agreement (but not during the period of time commencing one hundred and eighty (180) Days prior to the expected Delivery Term Commencement Date (which date Seller shall communicate to Buyer in writing at least two hundred and ten (210) Days prior to such date) and ending on the Delivery Term Commencement Date), elect to serve (or have its designee serve) as the Market Participant (or similar representative) for the Facility before the Balancing Authority applicable to the Injection Portion (including any applicable RTO or ISO) during all or part of the Delivery Term. In such event, the Parties, acting reasonably and in good faith, shall agree upon the modifications and amendments of this Agreement required to reflect the case that Buyer is the Market Participant (or similar representative) for the Facility before the Balancing Authority applicable to the Injection Portion and set forth the same as a new Schedule 7.2(b) to this Agreement as expeditiously as practicable; provided, however, that neither Party shall have any obligation to modify or amend the terms of this Agreement that have a net material adverse effect on any of such Party’s rights, benefits, risks or obligations under this Agreement after taking into account any reduction in such Party’s costs and any elimination, diminution or re-allocation of such Party’s risks under this Agreement that would result from such modifications or amendments. Each Party shall conduct any and all negotiations in connection therewith in good faith and fully consistent with the rights and obligations of Buyer and Seller set forth in this Agreement (including Section 7.3(e), Section 7.6
Notwithstanding Section 7. 6(a), no Holder may assign any of its rights under this Agreement to any Person to whom such Holder Transfers any Registrable Securities if the Transfer of such Registrable Securities requires registration under the Securities Act.
Notwithstanding Section 7. 8.1, the Company shall not indemnify any Manager, or shareholder, director, officer or other employee thereof, for liability imposed or expenses incurred in connection with any claim arising out of a violation of the Securities Act of 1933, as amended, or any other federal or state securities law, with respect to the offer and sale of the Investor Units. Indemnification will be allowed for settlements and related expenses in lawsuits alleging securities law violations, and for expenses incurred in successfully defending such lawsuits, provided that (i) the Manager is successful in defending the action; (ii) the indemnification is specifically approved by the court of law which shall have been advised as to the current position of the Securities and Exchange Commission (as to any claim involving allegations that the Securities Act of 1933, as amended, was violated) or the applicable state authority (as to any claim involving allegations that the applicable state's securities laws were violated); or (iii) in the opinion of counsel for the Company, the right to indemnification has been settled by controlling precedent.
Notwithstanding Section 7. 01, all of a party’s rights, title and interest in this Agreement and any licenses and rights granted to it hereunder may be assigned or transferred to any direct or indirect successor or transferee to all or substantially all of the business of such party, which successor or transferee shall thereafter be deemed substituted for such party as the party hereto, effective upon such transfer or assignment.
Notwithstanding Section 7. 11(a), no Party shall have any liability to any other Party in the event that any Information exchanged or provided pursuant to this Agreement which is delineated as an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the Party providing such Information. No Party shall have any liability to any other Party if any Information is destroyed after reasonable best efforts by such Party to comply with the provisions of Section 7.10.
Notwithstanding Section 7. 4.1, the approval of any of the matters set out on Exhibit B shall require (a) the affirmative vote of a majority of the Managers present at a duly held meeting at which a quorum is present, (b) for so long as Jefferies owns the Requisite Percentage, the approval by Jefferies in its capacity as a Member, and (c) the approval by NBM in its capacity as a Member. When requested by the Board of Managers pursuant to this Section 7.4.2, each of Jefferies and NBM shall, within five Business Days of receipt of such request, provide written notice to the Board of Managers of its determination to consent or not consent to the actions for which such consent is required pursuant to Exhibit B.
Notwithstanding Section 7. 12(a), each Trust Representative agrees that it shall replace any Titling Trustee Agent appointed by such Trust Representative (including U.S. Bank) upon the occurrence and continuation of any of the following events:
Notwithstanding Section 7. 6.1, should the use of any StarSight Trademark as contemplated by this Agreement be enjoined or be threatened to be enjoined, StarSight shall notify Microsoft and immediately, at StarSight's expense: (i) procure for Microsoft the right to continue use the StarSight Trademark, as applicable, as licensed in this Agreement; or (ii) replace or modify the StarSight Trademark with a mark that is non-infringing. Xx the alternative, and at StarSight's election, StarSight may notify Microsoft that Sections 5.2 and 5.3 shall not apply to the infringing or -------------------------------------------- *** Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission. potentially infringing StarSight Trademark until such time as StarSight notifies Microsoft that such mark is neither infringing nor xxxentially infringing. In the event, after a reasonable period of time, StarSight is unsuccessful in its attempts to procure the necessary rights or replace or modify the StarSight Trademark as indicated above, Microsoft may take reasonable steps to remove or modify the StarSight Trademark, with StarSight's approval not to be unreasonably withheld, to prevent the injunction from being entered.
Notwithstanding Section 7. 6.1, the amounts distributable to the Class C Member pursuant to Section 7.6.1 shall be reduced by expenses chargeable to the Class C Member pursuant to Section 9.4.
Notwithstanding Section 7. 1.1, Cinapsys may terminate this Agreement immediately if (a) Company fails to make when due any payments to Cinapsys under this Agreement; (b) if Cinapsys determines, in its sole discretion, that Company has failed to provide complete and accurate information necessary for Cinapsys to perform the Services, or that Company is acting or has acted in a manner that damages or could potentially damage Cinapsys' reputation in the business community, or (c) if Company (i) becomes insolvent; (ii) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (iii) is declared insolvent or admits in writing its insolvency or inability to pay its debts or perform its obligations as they mature; (iv) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition or general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof; or (v) becomes the subject of a Federal, SEC or NASD investigation into its business practices, accounting or officers and directors. If Cinapsys terminates this Agreement in accordance with this Section 7.1.2, then the license granted to Company pursuant to SECTION 3 shall immediately terminate.
