Addition of [Section 6.1(h)]. [Section 6.1] of the SPA is amended by the addition of the [following [clause (h)]].
Addition of [Section 2.4G] to the Agreement. The following provisions are hereby incorporated into the Agreement as [Section 2.4G] and subsections:
Addition of Unencumbered Property. [Each of the][The] Borrower [and the Joining Party] hereby certifies that, as of the date hereof,
Addition of an Issuing Bank. One or more Revolving Lenders (other than a Defaulting ) selected by the that agrees to act in such capacity and reasonably acceptable to the Administrative may become an additional Issuing Bank hereunder pursuant to a written agreement in form and substance reasonably satisfactory to the Administrative among the , the Administrative and such Revolving . The Administrative shall notify the Revolving Lenders of any such additional Issuing Bank.
Lender Addition and Acknowledgment Agreements. The Administrative Agent shall have received Lender Addition and Acknowledgment Agreements duly executed by the Company, the Administrative Agent and each Increasing Lender.
Addition of Shares from Prior Plan. After the Effective Date, if any Shares subject to awards granted under the Prior Plan would again become available for new grants under the terms of such plan if such plan were still in effect, then those Shares will be available for the purpose of granting Awards under this Plan, thereby increasing the number of Shares available for issuance under this Plan as determined under [Section 6(a)], including incentive stock options. Any such Shares will not be available for future awards under the terms of the Prior Plan.
Conditions to Addition of an Applicant Borrower. The agreement of Lenders to the addition of an Applicant Borrower as a Borrower under this Agreement is subject to the satisfaction, or waiver by , of the following conditions precedent, as well as the conditions specified in [Section 2.26]:
Resignation or Addition of an L/C Issuer. An L/C Issuer that is no longer a Revolving Lender hereunder may resign as L/C Issuer at any time upon at least 30 days’ prior written notice to the Administrative Agent and the Borrower. One or more Revolving Lenders, with such Revolving Lender’s consent, may be appointed as additional L/C Issuers in accordance with paragraph # below. The Administrative Agent shall notify the Revolving Lenders of any such resignation of an L/C Issuer or any such appointment of an additional L/C Issuer. At the time any such resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the resigning L/C Issuer. From and after the effective date of any such resignation or addition, as applicable, # any successor or additional L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and # references herein to the term “L/C Issuer” shall be deemed to refer to such successor or such addition or to any previous L/C Issuer, or to such successor or such additional L/C Issuer and all previous L/C Issuers, as the context shall require. After the resignation of an L/C Issuer hereunder, such L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit. If at any time there is more than one L/C Issuer hereunder, the Borrower may, in its discretion, select which L/C Issuer is to issue any particular Letter of Credit.
[Section 1.05] of the Credit Agreement is hereby amended and restated as follows:
[Section 5.16] of the Credit Agreement is hereby deleted.
[Section 1.01] of the Credit Agreement is hereby amended by adding the following definitions in the appropriate alphabetical order:
[[Section 7.02-1]1]]1] of the Trust Agreement provides that the Company and the trustee may amend the Trust Agreement prior to a Special Circumstance (as defined in the trust Agreement) without the written consent of the Plan participants if such amendment does not have a material adverse effect on the rights of any participant.
[Section 409A]. Any payment provided under this Agreement is intended to be a short-term deferral as provided by Section 409A of the Internal Revenue Code and the regulations promulgated thereunder, and the parties agree that the terms and provisions of the Agreement will be construed and interpreted to the maximum extent permitted in order to have this effect. Notwithstanding anything to the contrary, any payment provided under this Agreement will be made within the short-term deferral period specified in Treasury Regulation Section 1.409A-1(b)(4).
[Section 1.2] of the Plan is amended to add the following sentence to the end thereof:
[Section 2.2(g)] of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:
[Section 409A]. All Restricted Stock Units granted pursuant to this Agreement are intended either to be exempt from Section 409A of the Code, or, if subject to Section 409A of the Code, to be administered, operated and construed in compliance with Section 409A of the Code and any guidance issued thereunder. This Agreement and the Plan shall be administered in a manner consistent with this intent and any provision that would cause the Agreement or Plan to fail to satisfy the first sentence of this section shall have no force and effect. Notwithstanding anything contained herein to the contrary, Restricted Stock Units (and related DERs) that # constitute “nonqualified deferred compensation” as defined under Section 409A of the Code and # vest as a consequence of the Grantee’s termination of employment, shall not be delivered until the date that the Grantee incurs a “separation from service” within the meaning of Section 409A of the Code (or, if the Grantee is a “specified employee” within the meaning of Section 409A of the Code and any guidance issued thereunder, the date that is six months and one day following the date of such “separation from service” (or on the date of the Grantee’s death, if earlier)). In addition, each amount to be paid or benefit to be provided to the Grantee pursuant to this Agreement that constitutes deferred compensation subject to Section 409A of the Code, shall be construed as a separate identified payment for purposes of Section 409A of the Code.
[Section 409A]. It is intended that all of the severance benefits and other payments payable under this letter satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this letter will be construed to the greatest extent possible as consistent with those provisions. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), your right to receive any installment payments under this letter (whether severance payments, reimbursements or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this letter, if you are deemed by the Company at the time of your Separation from Service to be a specified employee for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be deferred compensation, then to the extent delayed commencement of any portion of such payments is required in order to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, such payments shall not be provided to you prior to the earliest of # the expiration of the six-month period measured from the date of your Separation from Service with the Company, # the date of your death or # such earlier date as permitted under Section 409A without the imposition of adverse taxation. Upon the first business day following the expiration of such applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this paragraph shall be paid in a lump sum to you, and any remaining payments due shall be paid as otherwise provided herein or in the applicable agreement. No interest shall be due on any amounts so deferred.
It is intended that any amounts payable under this Agreement will comply with and avoid the imputation of any tax, penalty or interest under Section 409A of the Internal Revenue Code of 1986, as amended (including the Treasury Regulations and other published guidance related thereto) (“[Section 409A]”). This Agreement will be construed and interpreted consistent with that intent. Any installment payments provided for in this Agreement shall be treated as a series of separate payments for purposes of Code Section 409A.
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