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All initially capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Agreement. | 28Defined Terms
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The execution, delivery and performance by the Company and each Subsidiary of the Transaction Documents, the issuance and sale of the Securities, and the consummation of the transactions contemplated by the Transaction Documents to which the applicable entity is a party (i) are not and will not be subject to the Required Approvals, conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) do not and will not conflict with, or constitute a default (or an event that with notice or lapse of time or both would constitute a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, do not and will not conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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Notwithstanding any other provision of this Agreement, the Company may withhold from any amounts payable under this Agreement, or any other benefits received pursuant hereto, any Federal, state and/or local taxes as shall be required to be withheld under any applicable law or regulation, or, as applicable, may impute income for tax purposes, to the extent required with respect to any benefits under this Agreement. | 87Taxes
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All representations and warranties contained in this Guaranty or in any other agreement between the Guarantor and Minnetronix shall survive the execution, delivery and performance of this Guaranty and the creation and payment of the Obligations. Captions in this Guaranty are for reference and convenience only and shall not affect the interpretation or meaning of any provision of this Guaranty. | 46General
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This Agreement and the Shareholder Agreement represent the entire agreement of the parties with respect to the subject matter hereof and no provision or document of any kind shall be included in or form a part of this Agreement except by mutual, written consent of the parties. | 38Entire Agreements
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A one-time Interest charge of 10% shall be applied to the Principal Sum. The Interest is in addition to the OID, and that OID remains payable regardless of time and manner of payment by the Issuer. The Issuer may repay up to 98% (such that the Investor may retain 2%) of this Note at any time on or before 180 days after its Effective Date in an amount equal to 140% of the sum of the Principal Sum being repaid plus all accrued and unpaid interest, OID, liquidated damages, fees and other amounts due on such Principal Sum. The Issuer may not repay any payment of Consideration after 180 days after its Effective Date prior to its Maturity Date without written approval from the Investor. | 54Interests
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To the fullest extent permitted by applicable law, the Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the obligations of the Account Parties under this Agreement may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VIII) for purposes of Section 3.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Account Party and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Account Party) shall forthwith become due and payable by the Guarantors for purposes of Section 3.01. | 75Remedies
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The Company shall (a) disclose the material terms of the transactions contemplated hereby in its Quarterly Report on form 10-Q for the quarter ended June 20, 2016, or (b) file a Current Report on Form 8-K, including this Agreement and the form of Note and Warrant as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the filing of such public disclosure, the Company represents to Purchaser that it shall have publicly disclosed all material, non-public information delivered to any of Purchaser by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents. In addition, effective upon the issuance of such public disclosure, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and Purchaser or any of their Affiliates on the other hand, shall terminate. The Company and Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of Purchaser, or without the prior consent of Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of Purchaser, or include the name of Purchaser in any filing with the Commission or any regulatory agency or the OTC Market (“Trading Market”), without the prior written consent of Purchaser, except (a) as required by federal securities law in connection with the filing of this Agreement with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide Purchaser with prior notice of such disclosure permitted under this clause (b). | 71Publicity
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The Guarantor hereby agrees to defend, indemnify and hold harmless each Guaranteed Creditor from and against any losses, costs or expenses (including, without limitation, reasonable attorneys’ fees and litigation costs) incurred by such Guaranteed Creditor in connection with any Guaranteed Creditor’s collection of any sum due hereunder or its enforcement of its and the other Guaranteed Creditors’ rights hereunder. | 41Expenses
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Except as otherwise expressly provided herein (including Section 6.01 hereof), all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred. | 41Expenses
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This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Parent Borrower and the Administrative Agent. | 26Counterparts
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Section and Subsection headings herein are included for convenience of reference only and shall not affect the interpretation of this Amendment or any other Loan Document. | 48Headings
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Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Committee, care of the Company, at the Company’s principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee’s address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Committee) from time to time. | 65Notices
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Except as set forth in the Revolver, the Originator has filed consolidated United States federal income tax returns for all taxable years ended on or before January 3, 2015, and such returns of the Originator for the taxable year ended January 3, 2015, and all taxable years ended before such date have been examined and approved by the Internal Revenue Service, and any additional assessments for any such year have been paid or the applicable statute of limitations therefor has expired. There are no assessments pending for the consolidated United States federal income tax returns of the Originator and its Subsidiaries for any taxable year ended after January 3, 2015, nor to the Actual Knowledge of the Originator is any such assessment threatened, other than those provided for by adequate reserves under GAAP and those that would not reasonably be expected to result in any Material Adverse Effect. | 87Taxes
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The obligations under this Agreement are intended to comply with the requirements of Section 409A of the Code or an exemption or exclusion therefrom and shall in all respects be administered in accordance with Section 409A of the Code. Any payments that qualify for the “short-term deferral” exception, the separation pay exception or another exception under Section 409A of the Code shall be paid under the applicable exception to the maximum extent permissible. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation for purposes of applying the exclusion under Section 409A of the Code for short-term deferral amounts, the separation pay exception or any other exception or exclusion under Section 409A of the Code. In no event may the Executive, directly or indirectly, designate the calendar year of any payment under this Agreement. All payments to be made upon a termination of employment under this Agreement may only be made upon a “separation from service” under Section 409A of the Code to the extent necessary in order to avoid the imposition of penalty taxes on the Executive pursuant to Section 409A of the Code. | 46General
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The representations and warranties of the parties contained in this Agreement shall survive for twelve (12) months following the Closing, except that (a) the representations and warranties of the Company contained in Sections 2.1(a), 2.1(b), 2.1(c)(1) and 2.1(e) will survive for three (3) years following the Closing, and (b) the representations and warranties of the Purchaser contained in Sections 2.2(a), 2.2(b)(1) or 2.2(c) will survive until the expiration of the applicable statute of limitations. All of the covenants or other agreements of the parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance. | 85Survival
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The defined terms set forth in this Amendment shall have the same meanings as set forth in the Agreement. | 28Defined Terms
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If, after Administrative Agent has paid each Lender’s proportionate share of any payment received or applied by Administrative Agent in respect of the Loan, that payment is rescinded or must otherwise be returned or paid over by Administrative Agent, whether pursuant to any bankruptcy or insolvency law, sharing of payments clause of any loan agreement or otherwise, such Lender shall, at Administrative Agent’s request, promptly return its proportionate share of such payment or application to Administrative Agent, together with the Lender’s proportionate share of any interest or other amount required to be paid by Administrative Agent with respect to such payment or application. | 0Adjustments
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Schedule 5.10 correctly sets forth, as of the Second Restatement Closing Date, each Subsidiary of the Credit Parties, its respective jurisdiction of organization and the percentage ownership (direct and indirect) of such Credit Party in each class of capital stock or other Equity Interests of each of its Subsidiaries and also identifies the direct owner thereof. | 83Subsidiaries
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The Company has all necessary power and authority to execute, deliver and perform its obligations under the Transaction Documents and to consummate the Transaction, and no stockholder actions are necessary for the Company’s execution, delivery and performance of its obligations under the Transaction Documents and to consummate the Transaction. | 9Authority
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Unless this Agreement has otherwise terminated pursuant to Section 8.4, this Article II shall terminate on December 31, 2017. In addition, unless this Agreement has otherwise been terminated pursuant to Section 8.4 or this Article II has otherwise been terminated pursuant to the first sentence of this Section 2.11, Sections 2.1, 2.2, 2.3, 2.4 and 2.6 shall terminate upon a Change of Control of Archrock; provided , that in the event of such a termination, the Archrock Entities shall continue to be prohibited until December 31, 2017, without the prior written approval of the Conflicts Committee, from providing (whether directly, including through the acquisition of equipment, or indirectly through the acquisition of or investment in equity or debt securities of any Person) Competitive Services to a particular Partnership Customer at the particular Site at which the Partnership Group was providing Competitive Services to such Partnership Customer on the date of the Change of Control of Archrock. | 88Terminations
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During the Term, Executive’s base salary shall be $628,500 per year (the “Base Salary”), starting as of the Effective Date (pro-rated for any partial year), which Base Salary shall be (i) payable in installments in accordance with the Company’s standard payroll practices and policies, and (ii) subject to such withholding and other taxes as required by law or as otherwise permissible under such practices or policies. Annually during the Term, the Company shall review with the Executive his job performance and compensation, and if deemed appropriate by the Board or the Compensation Committee of the Board (the “Committee”), in its or their discretion, the Executive’s Base Salary may be increased but not decreased. After any such increase, the term “Base Salary” as used in this Agreement will thereafter refer to the increased amount. The Executive shall not receive additional compensation for service as a director on the Company’s Board or as a director of any Affiliate of the Company (other than reimbursement of reasonable expenses). | 11Base Salary
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The provisions of this Section 7.7 are also for the benefit of the Indemnitees, their employees, officers, directors, trustees, heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 , or any provision hereof, shall be prospective only and shall not in any way affect the limitation on the Partnership’s liability to any Indemnitee under this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or related to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted. | 12Benefits
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This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. Notwithstanding the foregoing, this Agreement shall be assignable, in whole or in part, to (i) an Affiliate or (ii) a bona fide Third Party in connection with a merger, reorganization, consolidation or the sale or other transfer of all or a portion of the business or assets of a Party or its Affiliates to which this Agreement relates, so long as the resulting, surviving or transferee entity assumes all of the applicable obligations of the relevant Party by operation of law or pursuant to a written agreement (provided that for clarity, Versum shall not assign any of its rights hereunder with respect to the Air Products Licensed Engineering and Process Standards and Policies without Air Products’ prior written consent, except, subject to Section 7.2 , in the case of a Change of Control). No assignment permitted by this Section 8.4 shall release the assigning Party from liability for the full performance of its obligations under this Agreement prior to such assignment (or, with respect to any assignments of this Agreement in part, following such assignment with respect to such parts of this Agreement not so assigned). At the written request of a Party, the other Party shall promptly notify the requesting Party in writing of all Persons to which this Agreement or any part hereof has been assigned (and provide any other information reasonably requested in connection therewith). | 7Assignments
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The 2016-A Lease was fully and properly executed by the parties thereto and such 2016-A Lease represents the legal, valid and binding full-recourse payment obligation of the related Lessee, enforceable against such Lessee in accordance with its terms, except as enforceability is subject to or limited by bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and other similar laws affecting the enforcement of creditors’ rights in general or principles of equity (whether considered in a suit at law or in equity). | 36Enforceability
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The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Sections 5.1 and 5.2 , the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All “Loans” made and “Obligations” incurred under and as defined in the Existing Credit Agreement which are outstanding on the Closing Date, if any, shall continue as Loans and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) all “Letters of Credit” issued (or deemed issued) under and as defined in the Existing Credit Agreement which remain outstanding on the Closing Date, if any, shall continue as Letters of Credit under (and shall be governed by the terms of) this Agreement, (c) notwithstanding any provisions to the contrary in the Existing Credit Agreement, the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s Pro Rata Share of the “Revolving Credit Obligations” under the Existing Credit Agreement and participations therein as are necessary in order that the Revolving Credit Obligations with respect to such Lender hereunder reflects such Lender’s Pro Rata Share of the Revolving Credit Obligations on the Closing Date and (d) to the extent any “Loans” are outstanding under the Existing Credit Agreement on the Closing Date, the Borrowers hereby agree to compensate each Lender, unless waived by such Lender in its sole discretion, for any and all losses, costs and expenses incurred by such Lender in connection with the reallocation, sale or assignment of any Eurocurrency Rate Loans (including the “Eurocurrency Rate Loans” under the Existing Credit Agreement), in each case on the terms and in the manner set forth in Section 4.4 hereof. | 2Amendments
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Unless the context of this Agreement otherwise requires (a) words of any gender include each other gender, (b) words using the singular or plural number also include the plural or singular number, respectively, (c) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire Agreement, (d) the terms “Article,” “Section,” and “Exhibit” refer to the specified Article, Section and Exhibit of this Agreement and (e) the terms “include,” “includes,” or “including,” shall be deemed to be followed by the words “without limitation” unless otherwise indicated. Whenever this Agreement refers to a number of days, unless otherwise specified, such number shall refer to calendar days. The headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. | 55Interpretations
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The Executive’s employment shall terminate automatically if the Executive dies during the Employment Period. | 27Death
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Immediately prior to giving effect to the transactions contemplated by this Agreement, the authorized capital stock of the Company consists of (i) 350,000,000 shares of common stock, par value $0.001 per share (“Common Stock”), of which 143,182,111 shares are issued and outstanding, and (ii) 25,000,000 shares of preferred stock, par value $.001 per share (“Preferred Stock”), 5,000,000 shares of which are designated as "Series B Convertible Preferred Stock", none of which are issued and outstanding and 10,000,000 of which are designated as “Series C Convertible Preferred Stock”, 2,234,742 of which are issued and outstanding. As of the date hereof 9,050,000 shares of Common Stock are reserved for issuance upon exercise of stock options granted under the Company's 2007 Stock Option Plan and 25,000,000 shares of Common Stock are reserved for issuance upon exercise of stock options and other stock awards to be granted under the Company’s 2013 Equity Incentive Plan 18,358,500 of which have been granted as of the date hereof). As of the date hereof there are outstanding warrants to purchase 37,860,648 shares of Common Stock, outstanding warrants to purchase 344,993 shares of Series B Convertible Preferred Stock and outstanding convertible notes convertible into 46,222,204 shares of Common Stock. As of the date hereof, 5,473,143 shares of Common Stock are issuable to prior purchasers of the Company’s securities as penalty shares. | 16Capitalization
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EACH BORROWER AND LENDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER AND LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH BORROWER AND LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS. | 96Waiver Of Jury Trials
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This Amendment No. 2 may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment No. 2 by telefacsimile or other electronic method of transmission (including by pdf e-mail transmission) shall have the same force and effect as delivery of an original executed counterpart of this Amendment No. 2. Any party delivering an executed counterpart of this Amendment No. 2 by telefacsimile or other electronic method of transmission shall also deliver an original executed counterpart of this Amendment No. 2, but the failure to do so shall not affect the validity, enforceability, and binding effect of this Amendment No. 2. | 26Counterparts
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The 7th Floor Premises will have one (1) dedicated 277/480V 600amp panel for normal power. The rooftop/mechanical penthouse will have a 277/480V, 1200amp main panel, of which Tenant will have dedicated use of Tenant’s Pro Rata Share, with a sub-panel to be provided by Tenant. | 70Powers
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The parties to each assignment shall deliver to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing and recordation fee of $3,500 (except with respect to any assignment by a Lender to one of its Affiliates), (C) an Administrative Questionnaire unless the assignee is already a Lender and (D) the documents required under Section 2.20(e) . | 7Assignments
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Except as otherwise provided herein, this Agreement shall not be assignable by any party, without the other party's written consent, such consent not to be unreasonably withheld, except that such consent is not required in connection with the assignment of any parties’ obligation s to an affiliate of such party ; provided , however , that any such assignment shall not relieve the parties hereto from any obligations under this Agreement. | 7Assignments
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This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without reference to its conflicts of laws principles. | 47Governing Laws
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Pursuant to Section 9 of the Plan and the Guidelines, the Committee will (in the case of a Covered Employee) and may (with respect to other Participants) adjust the Performance Targets for the relevant Performance Period to exclude the impact of charges for restructurings, discontinued operations, extraordinary items, all non-cash charges resulting from any write-down of oil and gas properties and all other non-cash components of Accumulated Other Comprehensive Income (AOCI), other unusual or non-recurring items, and the cumulative effect of accounting changes, each as defined by generally accepted accounting principles and as identified in Southwestern’s audited financial statements, including the notes thereto. | 0Adjustments
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If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the Parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement. | 79Severability
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Effective as of the Termination Date, Executive’s employment is terminated and he shall cease serving as Executive Vice President, Chief Banking O fficer of the Company, and in any other position he then holds as an officer, employee or member of the board of directors of the Company and/or any of the Company’s subsidiaries or affiliates. Executive agrees to execute such documents and take such other actions as the Company may request to reflect such terminations. | 88Terminations
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The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $4,500 (or $7,500 (or such lesser amount as the Administrative Agent may agree, such lesser amount not to be less than $4,500 in any event) in the event that such transferor Lender is a Defaulting Lender) for each assignment (which fee the Administrative Agent may, in its sole discretion, elect to waive), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. If requested by the transferor Lender or the assignee, upon the consummation of any assignment, the transferor Lender, the Administrative Agent, the Company and the relevant Borrower shall make appropriate arrangements so that (i) to the extent requested by the assignee or transferor Lender, new Notes are issued to the assignee and such transferor Lender, as appropriate and (ii) any Notes held by the transferor Lender are promptly returned to the relevant Borrower for cancellation (and, to the extent not so returned, such Borrower shall be entitled to receive a customary indemnity agreement of the type described in Section 2.12.(c)(ii)(A) from such transferor Lender). | 7Assignments
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For all purposes related to the addresses stated in this contract, parties constitute special domicile in the locations indicated in this Agreement where all judicial or extrajudicial communications and notifications shall be valid. Any and all subsequent domicile changes must be communicated in a reliable manner to the other parties otherwise shall be fully effective like as if they had been made personally among parties. Additionally, this instrument is subject to the Laws of the Republic of Paraguay and it is irrevocable, obligating the contracting parties as well as their heirs, successors and legatees at any title for all legal purposes emerging from this commitment to submit under the jurisdiction of the Ordinary Courts of Ciudad del Este expressly waiving other jurisdiction for more rights they may have. | 47Governing Laws
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The Borrower shall use (i) the proceeds of the Initial Term Loans on the Closing Date solely to pay the obligations outstanding under the Existing Credit Agreement and Existing Notes and, to the extent of any remaining proceeds of Initial Term Loans after application thereto, Transaction Expenses, (ii) the proceeds of the Revolving Loans for general corporate purposes (including any transaction not prohibited by this Agreement); (iii) Letters of Credit for general corporate purposes; (iv) the proceeds of the Incremental Term Loans for general corporate purposes (including any transaction not prohibited by this Agreement) subject to any limitations specified in the applicable Incremental Agreement; and (v) the proceeds of the Additional/Replacement Revolving Loans for general corporate purposes (including any transaction not prohibited by this Agreement) subject to any limitations specified in the applicable Incremental Agreement and, in each case of this Section 6.10 , in compliance with Section 4.11 and the last sentence of each of clauses (a) and (b) of Section 4.20 . | 92Use Of Proceeds
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Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the Exercise Date. As soon as practicable after each exercise of this Warrant, and in any event within three Business Days thereafter, the Company shall execute (or cause to be executed) and deliver (or cause to be delivered) to the Holder a certificate or certificates representing the aggregate number of full Warrant Shares, if any, to be issued upon such exercise (which, upon Holder’s request, will be issued in book entry form in lieu of physical certificates), together with any cash in lieu of any fraction of a share as provided in Section 2(c) , or, in the case of Net Cash Settlement as provided in Section 2(a)(iii), if applicable, the relevant cash amount. The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as the exercising Holder shall reasonably request in the Exercise Notice or otherwise and shall be registered in the name of the Holder or such other name as shall be designated in the Exercise Notice. This Warrant shall be deemed to have been exercised, and such stock certificate or certificates shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of the shares of Common Stock evidenced by such stock certificate or certificates for all purposes, as of the Exercise Date. | 34Effectiveness
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Each of Parent and Buyer is duly organized and validly existing under the laws of its state of organization and has all requisite power and authority to carry on its business as now being conducted. Each of Parent and Buyer is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. | 66Organizations
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The Company will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business; provided that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under Section 6.03 or any disposition permitted under Section 6.05. | 40Existence
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The Executive and the Company each acknowledge that a breach of his/its covenants contained in this Section 6 may cause irreparable damage to the other party, the exact amount of which would be difficult to ascertain, and that the remedies at law for any such breach or threatened breach would be inadequate. Accordingly, each party agrees that if he/it breaches or threatens to breach any of the covenants contained in this Section 6, in addition to any other remedy which may be available at law or in equity, the other party shall be entitled to specific performance and injunctive relief to prevent the breach or any threatened breach thereof without bond or other security or a showing that monetary damages will not provide an adequate remedy. | 37Enforcements
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Each of the Sellers and the Purchaser will hold, and will cause the Company and its respective officers, directors, employees, agents, consultants, attorneys and other representatives to hold, in strict confidence, unless compelled to disclose by judicial or administrative process (including, without limitation, in connection with obtaining the necessary approval of insurance regulatory authorities) or by other requirements of Law, all confidential documents and confidential information concerning the other Party furnished to it by the other Party or such other Party's officers, directors, employees, agents, consultants, attorneys or representatives in connection with this Agreement or the transactions contemplated hereby, except to the extent that such documents or information can be shown to have been previously lawfully known by the Party receiving such documents or information, in the public domain through no fault of such receiving Party, or later acquired by the receiving Party from other sources not themselves bound by, and in breach of, a confidentiality agreement. Neither the Sellers nor the Purchaser will disclose or otherwise provide any such confidential documents or confidential information to any other Person, except to either Party's respective auditors, actuaries, attorneys, financial advisors, and other consultants and advisors who need such documents or information in connection with this Agreement and except as required by the provisions of Sections 5.1 and 6.1 . This Section 12.5 shall survive termination of this Agreement for a period of thirteen (13) months. | 20Confidentiality
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The terms of this Article 9 shall survive the Closing or earlier termination of this Agreement. | 85Survival
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This Letter Agreement may be executed in one or more counterparts, all of which counterparts shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and delivered to the other party. This Letter Agreement may be executed by facsimile or PDF signature and a facsimile or PDF signature shall constitute an original signature for all purposes. | 26Counterparts
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If RDH determines that the Code or Regulations (or any provision of state, local or foreign tax law) requires the Company to withhold with respect to any Member’s distributive share of income or share of distributions, the Company shall do so. Such withheld amounts shall be from cash otherwise distributable to such Member, which shall be deemed to have been distributed hereunder to such Member. The Members shall be authorized to take such other actions as shall be necessary or appropriate for the Members to comply with the Company’s obligations under applicable tax laws. In the event any such payment made by the Members to the IRS or other taxing authority exceeds the amount of cash otherwise then distributable to such Member, the amount of such payment equal to such excess shall constitute an advance by the Company to such Member for which such Member shall have personal liability, and such Member shall immediately repay such advance to the Company, together with interest thereon from the date when such payment is made to the date of repayment, at a rate of interest equal to the applicable federal rate as published by the IRS at the time such excess advance was made. | 86Tax Withholdings
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All representations, warranties and covenants contained in this Subscription Agreement shall survive (i) the acceptance of the subscription by the Company and the Closing, (ii) changes in the transactions, documents and instruments described in the Disclosure Materials which are not material or which are to the benefit of the undersigned and (iii) the death or disability of the undersigned. | 85Survival
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The waiver by either party of any breach or violation of any provision of this Agreement or the failure by any party to take action in response to the conduct or performance of any party shall not operate or be construed as a waiver of any subsequent breach, violation, conduct or performance. | 97Waivers
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If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable, then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties shall be construed and enforced accordingly. | 79Severability
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THE ADMINISTRATIVE AGENT AND THE GUARANTORS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE SOUTHERN DISTRICT OF NEW YORK (OR THE STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE EVENT THE FEDERAL COURTS LACK SUBJECT JURISDICTION) IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE ADMINISTRATIVE AGENT AND THE GUARANTORS HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. | 21Consent To Jurisdiction
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The Plan shall be binding upon all persons entitled to benefits under the Plan, their respective heirs and legal representatives, upon the Employer, its successors and assigns, and upon the Trustee, the Committee, and their successors. | 84Successors
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EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. | 96Waiver Of Jury Trials
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Any notice under this Agreement shall be addressed to the Company in care of its General Counsel at the principal executive office of the Company, with a copy to Stock Plan Administration, at the principal executive office of the Company, and to the Grantee at the address appearing in the personnel records of the Company for the Grantee or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee. | 65Notices
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This Agreement shall be binding upon the First Lien Representatives, the First Lien Secured Parties, the other First Lien Secured Parties, the Second Lien Representative, the Second Lien Secured Parties, the other Second Lien Secured Parties, the Third Lien Representative, the Third Lien Secured Parties, the other Third Lien Secured Parties, the Company and the other Grantors, and their respective successors and assigns. If any of the First Lien Representatives, the First Lien Collateral Agents, the Second Lien Representative or the Second Lien Collateral Agent, the Third Lien Representative or the Third Lien Collateral Agent resigns or is replaced pursuant to the First Lien Documents, the Second Lien Documents or the Third Lien Documents, as applicable, its successor shall be deemed to be a party to this Agreement and shall have all the rights of, and be subject to all the obligations of, this Agreement. No provision of this Agreement will inure to the benefit of a trustee, debtor-in-possession, creditor trust or other representative of an estate or creditor of any Grantor, including where any such trustee, debtor-in-possession, creditor trust or other representative of an estate is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency or Liquidation Proceeding. | 8Assigns
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Mortgagor hereby consents to personal jurisdiction in any state or Federal court located in Boston, Massachusetts or New York, New York. | 21Consent To Jurisdiction
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The captions and section headings used in this Agreement are for convenience of reference only, and shall not affect the construction or interpretation of this Agreement or any of the provisions hereof. | 48Headings
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During the Employment Period, the Executive shall receive an annual base salary (“ Annual Base Salary ”) at a rate of not less than $500,000 payable in accordance with Employer’s normal payroll policies. The Executive’s Annual Base Salary shall be reviewed for increase at least annually by the Bank Board, the Bancorp Board and/or the Compensation Committee of the Bancorp Board (the “ Compensation Committee ”) pursuant to normal performance review policies. The Annual Base Salary shall not be reduced after any increase and the term “Annual Base Salary” as utilized in this Agreement shall refer to Annual Base Salary as so increased. | 11Base Salary
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All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date (other than with respect to any obligations under Secured Cash Management Agreements, Secured Hedge Agreements or Permitted Bi-Lateral Letter of Credit Facility). The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the occurrence of the Termination Date, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII of the Original Credit Agreement shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans (as defined in the Original Credit Agreement) and the termination of Commitments (as defined in the Original Credit Agreement) or the effectiveness of this Agreement (including the amendment and restatement of the Original Credit Agreement) or any other amendments to any Loan Document or any provision of any of the foregoing in connection with the transactions contemplated hereby. | 85Survival
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The provisions of this Article 4 and the obligations of Developer and Coach Legacy, and their respective successors and assigns, shall survive the Closing and the termination of this Agreement for the periods provided in this Section 4.01. | 85Survival
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Each Seller and the Parent Company represents it has not assigned, hypothecated or otherwise conveyed their right, title, and interest in the Receivables to any person or entity other than the Purchaser. | 90Titles
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As of the Trade Date, the Initial Share Delivery Date and the Prepayment Date, (a) the aggregate fair market value of Counterparty’s assets will exceed its liabilities (including contingent, subordinated, unmatured and unliquidated liabilities), (b) it has not engaged in and will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (c) it has not incurred and does not intend to incur debts beyond its ability to pay as they mature, and (d) as a result of entering into and performing its obligations under the Transaction, (x) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of its own securities and (y) it would not be nor would it be rendered “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “ Bankruptcy Code ”)). | 80Solvency
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The Contributors shall have performed all obligations to be performed by them, and complied with their agreements and covenants to be performed or complied with by them under this Agreement on or prior to the Closing. | 1Agreements
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For any fiscal year or other accounting period for the applicable Person, balance sheets, statements of operations and capital accounts, and statements of cash flows setting forth in comparative form the corresponding figures for the year-earlier fiscal period. | 43Financial Statements
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All headings used herein are used for convenience only and will not be used to construe or interpret this Note. Except where otherwise indicated, all references herein to Sections refer to Sections hereof. | 48Headings
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THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO ARBITRATION IN NEW YORK COUNTY, BEFORE JUDICIAL ARBITRATION & MEDIATION SERVICES (" JAMS" ), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (" JAMS RULES" ). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH NEW YORK LAW, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL NEW YORK LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH NEW YORK LAW, NEW YORK LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN. | 6Arbitration
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Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against Borrower or any Subsidiary thereof that would, if made, be reasonably expected to have a Material Adverse Effect. Neither Borrower nor any Subsidiary thereof is party to any tax sharing agreement. Borrower and each of its Subsidiaries maintain adequate reserves for the payment of payment of any sales or use tax obligations in each jurisdiction where Borrower or such Subsidiary is required to pay such taxes. | 87Taxes
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Except as set forth in the Settlement Agreement, each party hereto will be responsible for and bear all of its respective costs and expenses incurred in connection with the transactions contemplated by this Agreement. | 41Expenses
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All payments to be made to or benefits to be received by Executive under this Agreement shall be subject to withholding to satisfy required withholding taxes and other required deductions. | 99Withholdings
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The Company shall not issue any shares of Common Stock pursuant to this Agreement if such issuance would reasonably be expected to result in a violation of the Securities Act. The provisions of this Section 2.4 shall be implemented in a manner otherwise than in strict conformity with the terms hereof only if necessary to ensure compliance with the Securities Act. | 46General
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All notices, instructions (pursuant to a Joint Written Direction or otherwise), approvals, consents, requests, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when such writing is delivered by hand or overnight delivery service, or (b) upon telephone call-back in accordance with Section 16 below, after being sent by e-mail with PDF attachment from the designated e-mail account(s) of the sending person(s) as designated on Schedule A hereto to the designated e-mail account(s) of the receiving person(s) as designated on Schedule A hereto or (c) three (3) Business Days after being mailed by first class mail (postage prepaid), in each case to the address set forth on Schedule A hereto or to such other address as each party hereto may designate for itself by like notice. | 65Notices
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Investor is duly organized, validly existing and in good standing as a limited liability company under the Laws of the State of Delaware, except where such failure to be in good standing would not reasonably be expected to have, individually or in the aggregate, a material adverse effect. | 66Organizations
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Directly or indirectly, use the proceeds of any Extension of Credit, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as a Lender, an Arranger, the Administrative Agent, the LC Issuer or otherwise) of Sanctions. | 78Sanctions
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This Agreement and the respective rights and obligations hereunder may not be assigned by either party hereto without the prior written consent of the other party. | 7Assignments
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Each Grantor covenants and agrees that it shall perform all covenants in this Section 4.01(b) . | 1Agreements
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This Note has been duly executed and delivered by the Maker. This Note constitutes a legal, valid and binding obligation of the Maker, enforceable against the Maker in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws. | 13Binding Effects
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All agreements, representations and warranties contained herein shall survive the execution and delivery of this Agreement, any investigation at any time made, the sale and purchase of the Purchased Shares, and any disposition of the Purchased Shares by the Investor. | 85Survival
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In addition to all other amounts payable to Executive under this Agreement, the Company shall pay or reimburse Executive for legal fees (including without limitation, any and all court costs, arbitration costs, and attorneys' fees and expenses), incurred by Executive in connection with or as a result of any claim, action or proceeding brought by the Company or Executive with respect to or arising out of this Agreement or any provision hereof, unless, in the case of an action brought by Executive, it is determined by an arbitrator or by a court of competent jurisdiction that such action was frivolous and was not brought in good faith. Such legal fees shall be paid or reimbursed by the Company from time to time within five business days following receipt by the Company of copies of bills for such fees and if the Company fails to make such payment within such five day period, the Company shall pay Executive interest thereon at the rate of 10% per annum. | 41Expenses
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This Agreement constitutes the entire agreement among the Company and the Shareholder with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the Company and the Shareholder with respect to the subject matter hereof. | 38Entire Agreements
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During the Employment Term, the Company shall pay Executive a base salary (the “ Base Salary ”) at the annual rate of the equivalent of US$1,000,000 payable in pounds sterling (“ GBP ”), converted at an exchange rate equal to the average of the daily US$:GBP spot exchange rates published by the Bank of England on each day of September 2016. The Base Salary shall be payable in arrears, in accordance with the usual payment practices of the Company. Salary shall be inclusive of any sums receivable (and shall abate by any sums received) by the Executive as director’s fees from any Group Company or otherwise arising from any office, held by the Executive by virtue of his employment under this Agreement. Executive’s Base Salary shall be subject to periodic review by the Board, not less frequently than annually, for possible increase and any such increased rate will thereafter be the Base Salary for all purposes of this Agreement. Under no circumstances may the Base Salary be decreased during the Employment Term. | 11Base Salary
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The paragraph and subparagraph headings contained in this Agreement are for convenience and reference only. They are not intended to define, limit, or expand the scope of the provisions of this Agreement. | 48Headings
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All information submitted by or on behalf of Borrower or Operating Lessee to Lender and in all financial statements, rent rolls (including the rent roll attached hereto as Schedule IV ), reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower or Operating Lessee in this Agreement or in any other Loan Document, are true, complete and correct in all material respects. To Borrower’s knowledge, there has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that is reasonably expected to have a Material Adverse Effect. Borrower, Operating Lessee and Guarantor have disclosed to Lender all material facts with respect to Borrower, Operating Lessee, Guarantor or the Property and has not failed to disclose any material fact that could cause any Provided Information or representation or warranty made herein to be materially misleading. | 31Disclosures
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The Company agrees to employ Executive pursuant to the terms of this Agreement, and Executive agrees to be so employed, for a term of three (3) years and five (5) months (the “ Initial Term ”) commencing as of the Effective Date. Notwithstanding the foregoing, Executive’s employment hereunder may be earlier terminated in accordance with Section 9 hereof, subject to Section 10 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 25 . The period of time between the Effective Date and the termination of Executive’s employment hereunder shall be referred to as the “ Employment Period .” Unless the Company gives Executive written notice at least ninety (90) days prior to the end of the Initial Term or any Renewal Term (as defined below), as the case may be, of its intent that this Agreement shall expire at the end of such Initial Term or Renewal Term, this Agreement shall automatically and without further action by the Company or Executive renew for another term of one (1) year on the same terms and conditions, including this sentence, except that such renewal term and any succeeding renewal term shall be the “Renewal Term” and “Renewal Term” shall replace (Initial Term”. | 89Terms
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No provision in this Agreement shall be supplemented, deleted or amended except in a writing executed by an authorized representative of each of Teva and Regeneron. | 2Amendments
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In the event that your employment with the Company or an Affiliate terminates due to your death, your Performance Shares will be due and payable in Shares (or cash at a value equal to the Closing Price on the date of your death, if so determined by the Committee). Any payment will be made at the time specified in Section 8. | 27Death
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The General Partner Entity may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Partnership so long as the General Partner and the General Partner Entity take commercially reasonable measures to ensure that the economic benefits and burdens of such assets (other than Qualified Assets, as to which no adjustments shall be required) are otherwise vested in the Partnership, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Partnership, the General Partner shall make such amendments to this Agreement as the General Partner determines are necessary or desirable, including, without limitation, adjusting the Conversion Factor to reflect such activities and the direct ownership of assets by the General Partner Entity. Nothing contained in this Agreement (including this Section 7.5) shall be deemed to prohibit the General Partner Entity from guaranteeing or being a co-obligor, co-borrower, guarantor or surety of, or otherwise providing credit support of any kind in respect of, any Debt or other indebtedness or obligations of the Partnership. | 46General
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Except as set forth on Schedule 5.6 , (a) all Tax Returns required to be filed by the Company or any Subsidiary have been filed; (b) all Taxes due and payable by the Company or any Subsidiary have been paid whether or not shown as due on such Tax Returns; (c) there are no Liens (other than Permitted Liens) on any of the assets (including the Assets) of the Company or any Subsidiary that arose in connection with the failure to pay any Tax by the Company or any Subsidiary; (d) there are no Proceedings, claims or notices of deficiency pending against or threatened in writing against the Company or any Subsidiary in connection with any Tax; (e) no Tax Returns of the Company or any Subsidiary are currently under audit or examination by any Governmental Authority; (f) there are no agreements or waivers currently in effect that provide for an extension of time with respect to the filing of any Tax Return by the Company or any Subsidiary or the assessment or collection of any Tax from the Company or any Subsidiary; (g) no written claim has been made by any Governmental Authority in a jurisdiction where the Company or any Subsidiary does not file a Tax Return or pay a Tax directly that it is or may be required to file a Tax Return or pay a Tax (as the case may be) in that jurisdiction; (h) none of the Company or any Subsidiary (i) has entered into any agreement or arrangement with any Governmental Authority that requires it to take any action or refrain from taking any action with respect to Tax matters, (ii) is a party to any agreement with any Governmental Authority with respect to Tax matters that would be terminated or adversely affected as a result of the consummation of the transactions contemplated by this Agreement, (iii) has participated in, is currently participating in, or has any liability for the payment of any Tax resulting from a Person’s participation in, any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b) (and all predecessor regulations) or any transaction requiring disclosure under a corresponding or similar provision of state, local or foreign Tax Law), (iv) is a party to any Tax sharing, allocation, indemnity or any similar written or unwritten agreement, arrangement, understanding or practice relating to Taxes with any Person other than the Company and/or any Subsidiary, or (v) has ever been a member of a Consolidated Group and has potential liability for the Taxes of any Person (in each case, other than with respect to the Company, the Seller and/or any Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law), as a transferee or successor, by contract or otherwise; and (j) since its formation, the Company and each Subsidiary (i) has either been classified as a partnership or disregarded as an entity separate from its owner for U.S. federal income tax purposes (and state, local or foreign income Tax purposes where applicable) and (ii) has not filed any election to be classified as an association taxable as a corporation for U.S. federal income tax purposes (or for state, local or foreign income Tax purposes where applicable). Notwithstanding any provision in this Agreement to the contrary, (A) the representations and warranties in this Section 5.6 are being made only with respect to Taxes that relate to the Company or any Subsidiary and (B) this Section 5.6 shall be the exclusive representations and warranties of Seller with respect to Tax matters, and no other representations or warranties are made with respect to such matters, including pursuant to Section 5.5 or Section 5.7 . | 87Taxes
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THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. | 47Governing Laws
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THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Sections 10.09 and 10.10 of the Credit Agreement are incorporated by reference herein mutatis mutandis . The provisions of this First Amendment shall be binding upon and inure to the benefit of the Loan Parties, Administrative Agent, the Collateral Agent, and the Lenders and their respective successors and permitted assigns. | 59Miscellaneous
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ImmunoGen and Biotest shall bear all the expenses of their respective JMC members related to their participation on the JMC and attendance at JMC meetings. | 41Expenses
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If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The parties will negotiate in good faith to replace any provision that is invalid or unenforceable with such other valid provision that most closely replicates the economic effect and rights and benefits of such invalid or unenforceable provision. | 79Severability
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Each party’s obligations under this Section 2.11 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. | 85Survival
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The Company will indemnify and hold the Investor and its directors, officers, shareholders, members, partners, employees and agents (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title), each person who controls the Investor, and the directors, officers, shareholders, agents, members, partners or employees (and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “ Purchaser Party ”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or the Note or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective affiliates, by any stockholder of the Company who is not an affiliate of such Purchaser Party, with respect to any of the transactions contemplated by herein (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under this Agreement or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or the Note. The indemnification required by this Section 4 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. | 49Indemnifications
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Tenant shall not cause or permit any Hazardous Materials (as hereinafter defined) to be brought upon, kept, used, stored, handled, treated, generated in or about, or released or disposed of from, the Premises or the Project in violation of applicable Environmental Requirements (as hereinafter defined) by Tenant or any Tenant Party or subtenant. If Tenant breaches the obligation stated in the preceding sentence, or if the presence of Hazardous Materials in the Premises is caused or permitted by Tenant or any Tenant Party during the Term or any holding over results in contamination of the Premises, the Project or any adjacent property, or if contamination of the Premises, the Project or any adjacent property by Hazardous Materials brought into, kept, used, stored, handled, treated, generated in or about, or released or disposed of from, the Premises by Tenant or any Tenant Party or subtenant otherwise occurs during the Term or any holding over, Tenant hereby indemnifies and shall defend and hold Landlord, its officers, directors, employees, agents and contractors harmless from any and all actions (including, without limitation, remedial or enforcement actions of any kind, administrative or judicial proceedings, and orders or judgments arising out of or resulting therefrom), costs, claims, damages (including, without limitation, punitive damages and damages based upon diminution in value of the Premises or the Project, or the loss of, or restriction on, use of the Premises or any portion of the Project), expenses (including, without limitation, attorneys’, consultants’ and experts’ fees, court costs and amounts paid in settlement of any claims or actions), fines, forfeitures or other civil, administrative or criminal penalties, injunctive or other relief (whether or not based upon personal injury, property damage, or contamination of, or adverse effects upon, the environment, water tables or natural resources), liabilities or losses (collectively, “ Environmental Claims ”) which arise during or after the Term as a result of such contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by any federal, state or local Governmental Authority because of Hazardous Materials present in the air, soil or ground water above, on, or under the Premises. Without limiting the foregoing, if the presence of any Hazardous Materials on the Premises, the Project or any adjacent property caused or permitted by Tenant or any Tenant Party results in any contamination of the Premises, the Project or any adjacent property, Tenant shall promptly take all actions at its sole expense and in accordance with applicable Environmental Requirements as are necessary to return the Premises, the Project or any adjacent property to the condition existing prior to the time of such contamination, provided that Landlord’s approval of such action shall first be obtained, which approval shall not unreasonably be withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Premises or the Project. | 50Indemnity
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This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but any number of which, taken together, shall be deemed to constitute one and the same instrument. | 26Counterparts
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This Guaranty Agreement, together with the Credit Agreement, any Hedge Agreement and other Loan Documents, constitutes and expresses the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, agreements, understandings, inducements, commitments or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. Except as provided in Section 21 , neither this Guaranty Agreement nor any portion or provision hereof or thereof may be changed, altered, modified, supplemented, discharged, canceled, terminated, or amended orally or in any manner other than as provided in the Credit Agreement. | 38Entire Agreements
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During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”) of Four Hundred Twenty-Five Thousand Dollars ($425,000). The Annual Base Salary shall be reviewed by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”) no less frequently than annually during the Employment Period and may be increased (but not decreased) at the discretion of the Committee or the Board. If the Executive’s Annual Base Salary is increased, the increased amount shall be the new Annual Base Salary for the remainder of the Employment Period, subject to continued annual review and adjustment. The Annual Base Salary shall be payable in installments subject to legally required tax withholdings, consistent with the Company’s payroll procedures in effect from time to time. | 11Base Salary
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No provision of the Separation Agreement or any Ancillary Agreement shall be deemed to release any individual, and the Versum Group shall not have the ability to release any individual, for any violation of the Air Products non-competition guidelines or any agreement or policy pertaining to confidential or proprietary information of any member of the Air Products Group, or otherwise relieve any individual of his or her obligations under such non-competition guidelines, agreement or policy, provided that service with the Versum Group shall not constitute a violation of any such non-competition guidelines. | 20Confidentiality
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