Common use of VERSION Clause in Contracts

VERSION. action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date that would otherwise be applicable.

VERSION. action that would make unavailable either If money for the exemption pursuant payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to Section 4(a)(2) the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. No reference herein to the Indenture and no provision of this Note or of the Securities Act for Indenture shall alter or impair the sale by Counterparty to Dealer (or any affiliate designated by Dealer) obligation of the Restricted Shares Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed. No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the exemption pursuant to Section 4(a)(1) Indenture or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer)claim based on, and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlementor by reason of such obligations or their creation. Each Holder, it by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note. This Note and the Indenture shall be an Event of Default governed by and construed in accordance with respect to Counterparty and Section 6 the law of the Agreement State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state. Ownership of this Note shall applybe proved by the register for the Notes kept by the Registrar. The Private Placement Settlement Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes. Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such Restricted Shares numbers and reliance may be placed only on the other identification numbers printed on this Note. Terms used herein without definition that are defined in the Indenture shall include customary representationshave the meanings assigned to them in the Indenture. Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer on behalf of the Restricted Shares Trustee by Dealer)the manual signature of an authorized officer of the Trustee's authenticating agent, opinions and certificates, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may this Note shall not be freely returned entitled to securities lenders by Dealer and may only any benefit under the Indenture or be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement valid or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date that would otherwise be applicableobligatory for any purpose.

VERSION. Borrower expressly waives Borrower’s right to assert defenses, setoffs and counterclaims of any kind in any action or proceeding in any court arising on, out of, under, by virtue of, or in any way relating to this Note or the transactions contemplated hereby. This waiver by Borrower is a condition precedent and material inducement for Payee to make the loan contemplated hereby and to enter into the Note. Borrower confirms that would make unavailable either the exemption pursuant to Section 4(a)(2) foregoing waiver is informed and voluntary. This Note may not be assigned, in whole or in part, by Borrower without the prior written consent of the Securities Act for Payee (any purported assignment hereof in violation of this provision being null and void). This Note will be governed by and construed in accordance with the sale by Counterparty to Dealer (or any affiliate designated by Dealer) laws of the Restricted Shares or State of New York without giving effect to the exemption pursuant principles of conflicts of laws thereof. Borrower agrees that any and all disputes arising under this Note are subject to Section 4(a)(1) or Section 4(a)(3) litigation in the courts of the Securities Act for resales State of New York. With regard to any and all disputes arising under this Note, Borrower hereby irrevocably submits to (A) the jurisdiction of the Restricted Shares courts of the State of New York and (B) service of process by Dealer (or any such affiliate mail. Borrower hereby waives all his rights to personal service of Dealer)process. Borrower hereby waives grace, demand and presentment for payment, notice of nonpayment, protest and notice of protest, diligence, filing suit, and if Counterparty fails all other notice requirements. Borrower expressly promises to deliver pay Payee all of its costs of collection of all amounts due hereunder, including reasonable attorneys’ fees. This Note sets forth the Restricted Shares when due entire understanding of the parties with regard to the subject matter hereof and supersedes all prior discussions, negotiations, representations, and agreements of the parties, whether oral or otherwise fails to perform obligations within its control in respect of a Private Placement Settlementwriting, it shall be an Event of Default with respect to Counterparty the entire subject matter hereof. No modification or waiver of any provision hereof will be binding upon any party unless in writing and Section 6 of signed by the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificatesparties hereto, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares this Note may not be freely returned to securities lenders by Dealer changed or terminated orally. The invalidity or unenforceability of any particular provision of this Note shall not affect the other provisions and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the this Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due construed in all respects as set forth in the previous sentence and not be due on the date that would otherwise be applicableif such invalid or unenforceable provisions were omitted.

VERSION. action that would make unavailable either to become billable, is not given or allocated, as applicable, within 180 days after the exemption pursuant Closing Date, then, notwithstanding any other provision of this Agreement to the contrary, but subject to the last sentence of this Section 4(a)(25.11(a), the sole remedy of Buyer shall be to cause Seller to purchase any such Specified Receivables at the net book amount thereof (taking into account any related reserves in effect as of the Effective Date and any payments on such Specified Receivables made after the Effective Date) and no claim may be made based on inaccuracy of any representation or warranty resulting therefrom. In the event Buyer and Seller disagree as to the amount of any Specified Receivable, Buyer and Seller agree to resolve such matter in accordance with Sections 10.20 and 10.21. If Buyer elects to cause Seller to purchase any such Specified Receivable(s), any notice(s) of such election(s) shall be given in accordance with Section 10.14 and must be received by Seller prior to the Securities Act for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) first anniversary of the Restricted Shares Closing Date or the exemption pursuant Buyer will be deemed to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or have waived any such affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default rights with respect to Counterparty and Section 6 such Specified Receivable. Each such notice shall (i) identify a closing date not less than five days nor more than thirty days after such notice is received by Seller upon which the closing of the Agreement sale shall applyoccur and (ii) state the purchase price for the Specified Receivable, together with such supporting detail as may be requested by Seller (which may be audited by Seller from time to time upon reasonable advance notice). The Private Placement Settlement Such notice shall be accompanied by records related to Buyer's attempts to collect the applicable Specified Receivable(s) and Buyer shall promptly provide Seller with all additional records relating to collection attempts with respect to the applicable Specified Receivable(s) as Seller may reasonably request from time to time. At each closing, Buyer shall deliver to Seller such instruments of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities transfer as may be reasonably requested by Seller to Dealer, due diligence rights (for Dealer or any designated buyer evidence the transfer of the Restricted Shares by Dealer), opinions and certificatesSpecified Receivable to Seller, and such other documentation Seller shall pay the purchase price in immediately available funds. Notwithstanding anything in the foregoing to the contrary, if the purchase of the Specified Receivables is not permissible under applicable Law, Seller shall instead indemnify Buyer from and against any Indemnified Losses with respect thereto, which Indemnified Losses shall be calculated in the same manner as is customary utilized above to calculate the purchase price for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may Specified Receivables and which Indemnified Losses shall not be freely returned subject to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as limitations set forth in the previous sentence and not be due on the date that would otherwise be applicableSection 9.4 or Section 9.5(a).