Common use of THIRTY-FOURTH Clause in Contracts

THIRTY-FOURTH. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all such state courts lack subject matter jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: (a) any derivative action or proceeding brought on behalf of the Corporation; (b) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee of the Corporation or any stockholder to the Corporation or the Corporation’s stockholders; (c) any action or proceeding asserting a claim against the Corporation or any current or former director, officer or other employee of the Corporation or any stockholder in such stockholder’s capacity as such arising out of or pursuant to any provision of the DGCL, this Amended and Restated Certificate or the Bylaws of the Corporation (as each may be amended from time to time); (d) any action or proceeding to interpret, apply, enforce or determine the validity of this Amended and Restated Certificate or the Bylaws of the Corporation (including any right, obligation or remedy thereunder); (e) any action or proceeding as to which the DGCL confers jurisdiction to the Court of Chancery of the State of Delaware; and (f) any action asserting a claim against the Corporation or any director, officer or other employee of the Corporation or any stockholder, governed by the internal affairs doctrine, in all cases to the fullest extent permitted by law and subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. This paragraph THIRTY-FOURTH shall not apply to suits brought to enforce a duty or liability created by the Securities Act of 1933, as amended, or the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction.

THIRTY-FOURTH. Unless This lease is and shall be subject and subordinate at all times to all present or future leases and subleases of the Corporation consents entire building or of the land and entire building of which the demised premises form a part, and to all mortgages which now affect or may hereafter affect or be made in respect of such leases and subleases or the real property of which the demised premises form a part (whether or not such leases or mortgages also affect any other or additional real property), and to all renewals, modifications, consolidations, replacements and extensions thereof and to all advances made or hereafter to be made upon the security thereof. This clause shall be self-operative and no further instrument in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all effectuate such state courts lack subject matter jurisdiction, the federal district court for the District of Delaware) subordination shall be necessary. In confirmation of such subordination, however, Tenant shall, on demand, promptly execute, acknowledge and deliver such further instruments or certificates that Landlord may request. Tenant hereby irrevocably appoints Landlord the sole attorney-in-fact of Tenant to execute, acknowledge and exclusive forum deliver any such instrument or certificate for the following types of actions or proceedings under Delaware statutory or common law: (a) any derivative action or proceeding brought on behalf of Tenant. In the Corporation; (b) event that any action Master Lease or proceeding asserting any other ground or underlying lease is terminated, or any mortgage foreclosed, this lease shall not terminate or be terminable by Lessee unless Lessee was specifically named in any termination or foreclosure judgment or final order. In the event that the Master Lease or any other ground or underlying lease is terminated as aforesaid, Lessee agrees to enter into a claim new lease covering the within premises, for the remaining term of breach of a fiduciary duty owed by any current or former directorthis lease and otherwise on the same terms, officer or other employee conditions and rentals as herein provided, with and at the election of the Corporation holder of any superior lease, or any stockholder if there is no superior lease in existence, then with and at the election of the holder of the fee title to the Corporation or premises. If the Corporation’s stockholders; (c) any action or proceeding asserting a claim against the Corporation or any current or former director, officer or other employee term of the Corporation Master Lease shall expire prior to the date set forth herein for the expiration of this lease, then, unless Lessor, at its sole option, shall have elected to extend or renew the term of the Master Lease, the term of this lease shall expire on the date of expiration of the Master Lease, notwithstanding the later expiration date hereinabove set forth. If the Master Lease is renewed, then the term of this lease shall expire as hereinabove set forth. From time to time, Lessee, on at least ten (10) days' prior written request by Lessor, will deliver to Lessor a statement in writing certifying that this lease is unmodified and in full force and effect (or if there shall have been modifications, that the same is in full force and effect as modified and stating the modifications) and the dates to which the rent and other charges have been paid and stating whether or not the Lessor is in default in performance of any stockholder covenant, agreement or condition contained in this lease and, if so, specifying each such stockholder’s capacity as such arising out default of which Lessee may have knowledge. This paragraph shall not be deemed modified in whole or pursuant to in part by any provision of this lease or any rider thereto during the DGCLterm hereof, this Amended and Restated Certificate unless such provisions or rider shall by its terms expressly so modify it. FIRE THIRTY-FIFTH: -- Provided the Bylaws damage be not caused by the fault or neglect of Tenant or of its employees, agents, visitors or licensees, in the event of damage by fire, or other action of the Corporation (elements, to the demised premises not rendering all of them unfit for occupancy. Landlord shall repair the same with reasonable dispatch after notice of such damage, and the rent accrued or accruing shall not cease: but if the damage be so extensive as each may be amended from time to time); (d) any action or proceeding to interpret, apply, enforce or determine the validity of this Amended and Restated Certificate or the Bylaws render all of the Corporation (including any rightdemised premises untenantable, obligation the rent shall cease until they be repaired, provided the damage be not caused by the carelessness or remedy thereunder); (e) any action negligence of Tenant or proceeding as to which the DGCL confers jurisdiction to the Court of Chancery of the State agents or servants of Delaware; Tenant. No penalty shall accrue for reasonable delay which may arise by reason of adjustment of insurance on the part of Landlord and/or Tenant, and (f) any action asserting a claim against the Corporation or any director, officer or other employee for reasonable delay on account of the Corporation or any stockholder, governed by the internal affairs doctrine, in all cases to the fullest extent permitted by law and subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. This paragraph THIRTY-FOURTH shall not apply to suits brought to enforce a duty or liability created by the Securities Act of 1933, as amended, or the Exchange Act, "labor troubles" or any other claim for cause beyond Landlord's control. If the demised premises are totally damaged or are rendered wholly untenantable by fire or other cause, and if Landlord shall decide not to restore or not to rebuild the same, or if the building shall be so damaged that Landlord shall decide to demolish it or to rebuild it, or if the cost of restoration of the building of which the federal courts have exclusive jurisdictiondemised premises are a part, resulting from the aforesaid fire or other casualty shall exceed the sum of $3,000,000, then or in any of such events Landlord may, within ninety (90) days after such fire or other cause, give Tenant a notice in writing of termination, which notice shall be given as provided in this lease, and thereupon the term of this lease shall expire by lapse of time upon the third day after such notice is given, and Tenant shall vacate the demised premises and surrender the same to Landlord. If Tenant shall not be in default under this lease then, upon the termination of this lease under the conditions provided for in the sentence immediately preceding, Tenant's liability for rent shall cease as of the day following the casualty. Tenant hereby expressly waives the provisions of Section 227 of the Real Property Law and agrees that the foregoing provisions of this paragraph shall govern and control in lieu thereof. If the damage or destruction be due to the fault or neglect of Tenant, the debris shall be removed by and at the expense of Tenant.