Subject to Section 8. 1.1, the respective rights and obligations of the Parties shall be enforceable against the other provided each of the Parties has satisfied in full the Conditions Precedent specified herein below.
Subject to Section 8. 1.1, the Standard Contractual Clauses apply to (i) the legal entity that has executed the Agreement and is the Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer established within the EEA and Switzerland or the United Kingdom that have licensed the Service. For the purpose of the Standard Contractual Clauses and this Section 7, the aforementioned entities shall be deemed “Data Exporters”.
Subject to Section 8. 10 (d), the percentage increase for the inflation adjustment pursuant to this Section 8.10 is determined as at March 1 each year and the amount paid shall be the greater of (i) and (ii) as follows:
i) 80% of the percentage increase, if any, in the Consumer Price Index during the 12 month period ending on the immediately preceding December 31 to a maximum adjustment of 4%; or
Subject to Section 8. 2.1.2, the Manager, in its sole discretion, may exempt (prospectively or retroactively) a Person from the Aggregate Ownership Limit and/or the Common Share Ownership Limit, as the case may be, and may establish or increase an Excepted Holder Limit for such Person if the Manager determines, based on such representations and undertakings as it may require, that:
8.8.1.1 Subject to Section 8.8.5, such exemption will not cause the Beneficial Ownership or Constructive Ownership of Shares of the Company of any individual (as defined in Section 542(a)(2) of the Code as modified by Section 856(h)(3) of the Code) to violate Section 8.2.1.2; and
8.8.1.2 Such Person does not and will not Constructively own an interest in a tenant (or a tenant of any entity owned or controlled by the Company) that would cause the Company to own, actually or Constructively, more than a 9.9 percent (9.9%) interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant (for this purpose, a tenant from whom the Company (or an entity owned or controlled by the Company) derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the opinion of the Manager, rent from such tenant would not adversely affect the Company’s ability to qualify as a REIT shall not be treated as a tenant of the Company).
Subject to Section 8. 1 of the GTCs and otherwise notwithstanding anything to the contrary in this Agreement, the Parties agree that: (a) with regard to any liability arising prior to the Commencement Date, Operator and its affiliate’s total aggregate liability to Customer Group under this Agreement and the T&D Agreement shall be limited to $100,000,000; and (b) with regard to any liability arising on or after the Commencement Date, Operator and its affiliate’s total aggregate liability to Customer Group under this Agreement and the T&D Agreement shall be limited to $55,000,000; provided that the foregoing limitations shall not apply to any third party Claim under or pursuant to Section 7.1 of the GTCs.
Subject to Section 8. 1(1), the Borrower hereby irrevocably authorizes the Administrative Agent to transfer or allocate, as applicable, and the Administrative Agent shall transfer or allocate (or cause DBTCA to transfer or allocate pursuant to disbursement instructions from the Administrative Agent), as applicable, from the Payments Account, funds in the amounts, at the times and in the order of priority, as follows:
(a) for the payment of Debt Service funds equal all interest to be paid on the next applicable Payment Dates in respect of all Interest Periods then outstanding (e.g., in the event there are multiple Interest Periods then outstanding, the amount deposited would equal the aggregate of all sums payable on the next Payment Date applicable to each such Interest Period);
(b) during any Low DSCR Period or if a Noticed Event of Default shall have occurred and is then continuing, on the 15th day of each calendar month (or the next succeeding Business Day with respect to any month in which the 15th day is not a Business Day), funds in an amount equal to the balance (if any) deposited in the Payments Account to the extent remaining after the foregoing allocation set forth in Section 8.1(4)(i)(a) and apply the same, to the prepayment of the Loan and payment of accrued but unpaid interest on the amount prepaid, pursuant to Sections 3.3.(2)(E) and 3.3(3) (and all amounts payable pursuant to Section 2.8 as a result of such prepayment); and
(c) provided no Noticed Event of Default or Low DSCR Period shall have occurred and is then continuing, on the 1st day of each calendar month (or the next succeeding Business Day with respect to any month in which the 1st day is not a Business Day), funds in an amount equal to the balance (if any) deposited in the Payments Account to the extent remaining after the foregoing allocation and deposit set forth in Sections 8.1(4)(i)(a) through (b) (the “Excess Cash Flow”) and transfer the same to the Borrower’s Account free of any Lien or continuing security interest.
Subject to Section 8. 4, from and after the Effective Time any term of this Agreement may be amended only with the written consent of Autobytel, the Surviving Corporation, and the Majority Holders.
Subject to Section 8. 1.3, all media releases, public announcements, and public disclosures by either Party relating to the existence or subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements, shall be coordinated with and subject to approval by Customer and Provider prior to release. The Parties agree that the Customer shall make the relevant legal, regulatory and contractual disclosures and filings in relation to this Agreement and the transaction contemplated thereby within the prescribed timelines.
Subject to Section 8. 03(a), Buyer and Seller agree to make a timely, effective and irrevocable election under Section 338(h)(10) of the Code and under any comparable statute in any other jurisdiction located within the United States with respect to the Domestic Acquired Subsidiaries (the "SECTION 338(h)(10) ELECTION") and to file such election in accordance with applicable regulations. Within 120 days after the Closing Date, Seller shall deliver to Buyer a draft statement (the "ALLOCATION STATEMENT") proposing to allocate the Aggregate Deemed Sale Price (as defined under Treasury Regulations Section 1.338-4T) of the assets of the Domestic Acquired Subsidiaries in accordance with the Treasury Regulations promulgated under Section 338. If within 30 days after receipt of the Allocation Statement Buyer notifies Seller in writing that the Buyer disagrees with such allocation, Buyer and Seller will negotiate in good faith to resolve such dispute. Seller and Buyer agree to (i) act in accordance with the Allocation Statement in the preparation, filing and audit of any Tax return and (ii) cooperate fully, as and to the extent reasonably requested by the other party, in connection
Subject to Section 8. 4.1 of this Agreement, each Co-op Advertising Region will decide as to the usage of funds available to it for media time, production of media materials, whether for radio, television, newspapers or Restaurant level materials such as flyers, or posters, or for any other type of advertising or marketing use, and then such Co-op Advertising Region shall in writing request approval from Franchisor to use said funds in said manner. Franchisor shall not withhold approval unreasonably, but no placement of advertising or commitment of advertising funds on behalf of a Co-op Advertising Region will be made without Franchisor’s prior written approval. Franchisor reserves the right to establish general standards concerning the operation of the Co-op Advertising Region, advertising agencies retained by Co-op Advertising Region, and advertising programs conducted by Co-op Advertising Region. Any disputes (other than pricing) arising among or between Franchisee, other franchisees, and/or the Co-op Advertising Region may be resolved by Franchisor whose decision shall be final and binding on all parties. No Co-op Advertising Region may appoint or pay from the funds collected by the Co-op Advertising Region fees or costs of any advertising agency or buying group without the prior written permission of Franchisor.
