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This Guaranty shall be binding on, and shall inure to the benefit of, the Guarantor, each Guaranteed Party and their respective successors and assigns; provided that the Guarantor may not assign or transfer its rights or obligations under this Guaranty without the prior written consent of the Administrative Agent and without requiring any further consent of any Lender. Without limiting the generality of the foregoing, each Guaranteed Party may assign, sell participations in or otherwise transfer its rights under the Facility Documents in accordance with the terms thereof to any other person or entity, and the other person or entity shall then become vested with all the rights granted to the Guaranteed Parties in this Guaranty or otherwise. | 7Assignments
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This Agreement and each of the other Loan Documents (i) has been duly and validly executed and delivered by each Loan Party, and (ii) constitutes, or will constitute, legal, valid and binding obligations of each Loan Party which is or will be a party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity. | 13Binding Effects
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The Company and its Affiliates shall be entitled to require a cash payment (or other form of payment determined in accordance with Section 11.2 of the Plan) by or on behalf of the Participant and/or to deduct from other compensation payable to the Participant any sums required by federal, state or local tax law to be withheld with respect to the grant, vesting and/or payment of the RSUs and/or the Dividend Equivalents. The Company shall have no obligation to make any payment in any form under this Agreement or under any RSU or Dividend Equivalent issued in accordance herewith unless and until such tax obligations have been satisfied. | 86Tax Withholdings
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Borrower shall from time to time execute, deliver and file, alone or with Agent, any financing statements, security agreements, collateral assignments, notices, control agreements, or other documents to perfect or give the highest priority to Agent’s Lien on the Collateral. Borrower shall from time to time procure any instruments or documents as may be reasonably requested by Agent, and take all further action that may be necessary, or that Agent may reasonably request, to perfect and protect the Liens granted hereby and thereby. In addition, and for such purposes only, Borrower hereby authorizes Agent to execute and deliver on behalf of Borrower and to file such financing statements (including an indication that the financing statement covers “all assets or all personal property” of Borrower in accordance with Section 9-504 of the UCC), collateral assignments, notices, control agreements, security agreements and other documents without the signature of Borrower either in Agent’s name or in the name of Agent as agent and attorney-in-fact for Borrower. Borrower shall protect and defend Borrower’s title to the Collateral and Agent’s Lien thereon against all Persons claiming any interest adverse to Borrower or Agent other than Permitted Liens. | 45Further Assurances
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Notices, consents and other communications provided for herein shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. Communications and notices to the Guarantor shall be given to it at 3501 County Road 6 East, Elkhart, Indiana 46514, Attention: David Smith. | 65Notices
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The Associate shall keep this Agreement and its terms confidential and shall not disclose or discuss the same with anyone other than his attorney, accountant, and spouse, if any. | 20Confidentiality
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This Agreement shall be binding upon and inure to the benefit of the Company and the Shareholders and their respective heirs, successors and permitted assigns. Directors are express third party beneficiaries of the provisions of Sections 2.5 , in all cases upon the terms and conditions set forth herein. | 13Binding Effects
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Schedule 3.19 lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by the Purchaser relating to the Purchaser or its business, properties, assets, directors, officers and employees. All premiums due and payable under all such insurance policies have been timely paid and the Purchaser is otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of the Purchaser, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by the Purchaser. The Purchaser has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to have a Material Adverse Effect on the Purchaser. | 51Insurances
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Seller is not (i) an “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)) that is subject to the provisions of Title 1 of ERISA, (ii) a “plan” that is subject to the prohibited transaction provisions of Section 4975 of the Internal Revenue Code of 1986 (the “ Code ”) or (iii) an entity whose assets are treated as “plan assets” under ERISA by reason of an employee benefit plan’s or plan’s investment in such entity. | 39Erisa
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Each Group Member has filed or caused to be filed all Federal, state and other material income tax returns that are required to be filed and has paid all Federal, state and other material taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member); no material tax Lien has been filed, and, to the knowledge of the Parent Borrower, no material claim is being asserted, with respect to any such material tax, fee or other charge, except in each case as could not reasonably be expected to have a Material Adverse Effect. | 87Taxes
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Except as otherwise expressly provided herein, each of the parties to this Agreement shall pay its own costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby. | 41Expenses
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The proceeds from the purchase and sale of the Note shall be used by the Company for the Acquisition and payment of related fees and expenses, and for general working capital purposes. | 92Use Of Proceeds
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Notwithstanding the foregoing provisions, Tenant’s Share as to certain expenses included in Operating Expenses may be calculated differently to yield a higher percentage share for Tenant as to those expenses if Landlord permits other tenants or occupants in the Project to incur such expenses directly rather than have Landlord incur the expense in common for the Project. In such case, Tenant’s Share of the applicable expense shall be calculated as having as its denominator the sum of the gross leasable areas of all premises in the Project less the gross leasable areas of tenants who have incurred such expense directly. Nothing herein shall imply that Landlord will permit Tenant or any other tenant of the Project to incur Common Area Costs. Any such permission shall be in the sole discretion of Landlord. If the Building or Project is not one hundred percent (100%) occupied during all or a portion of any calendar year, Landlord shall make an appropriate adjustment to the components of Operating Expenses for such year to determine the amount of Operating Expenses that would have been incurred had the Building and Project been one hundred percent (100%) occupied; and the amount so determined shall be deemed to have been the amount of Operating Expenses for such year. | 0Adjustments
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The Borrower shall use the proceeds of the Extensions of Credit to continue the loans outstanding under the Existing Credit Agreement and for working capital and general corporate purposes of the Borrower and its Subsidiaries, including, without limitation, Permitted Acquisitions and fees and expenses in connection therewith, stock repurchases, dividends, and Capital Expenditures and may use such proceeds for the payment of certain fees and expenses incurred in connection with the Transactions and this Agreement. The Borrower will not request any Extension of Credit, and the Borrower shall not use, or permit its Subsidiaries and its or their respective directors, officers, employees or agents to use, the proceeds of any Extension of Credit, directly or indirectly, (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto. | 92Use Of Proceeds
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This Agreement may be executed in counterparts (or by combining electronic and/or original signatures into one or more counterparts), all of which together shall constitute an agreement binding on all parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Electronic copies of signatures shall constitute original signatures for all purposes of this Agreement and any enforcement hereof. | 26Counterparts
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All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Note or the Purchase Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “ New York Courts ”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of this Note or the Purchase Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses reasonably incurred in the investigation, preparation and prosecution of such action or proceeding. | 47Governing Laws
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Without prior written consent of Employer, Employee agrees to keep the terms of this Agreement (including the fact and amount of payments under this Agreement) and matters relating to Employee’s resignation completely confidential, and will not disclose any information concerning this Agreement or its terms or Employee’s resignation to anyone other than Employee’s spouse, legal counsel and/or financial advisors, who will be informed of and be bound by this confidentiality clause. This provision is not intended to restrict Employee from making disclosures as may be required by law or legal process. | 20Confidentiality
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This Agreement, the Contribution Agreement and the documents or instruments referred to herein and therein, including any exhibits and schedules attached hereto and thereto, embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein. This Agreement and such other agreements supersede all prior agreements and the understandings among the parties with respect to such subject matter. | 38Entire Agreements
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All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. | 42Fees
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(a) On each Payment Date, the Servicer and the Seller will deposit into the Collection Account the aggregate Repurchase Price with respect to Repurchased Receivables purchased by the Servicer pursuant to Section 3.6 or the Bank, as seller, pursuant to Section 3.4 of the Purchase Agreement, respectively, on such Payment Date and the Servicer will deposit (or will cause the applicable purchaser to deposit) into the Collection Account all amounts, if any, to be paid under Section 8.1 in connection with the Optional Purchase. All such deposits with respect to a Payment Date will be made, in immediately available funds by 3:00 p.m., New York City time, on the Business Day prior to such Payment Date related to such Collection Period. | 68Payments
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The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. | 32Duties
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Pursuant to Company policy, and to the extent not set forth in the Compensation Schedule, the Company shall reimburse the Employee for all authorized travel and other reasonable expenses incurred by her in furtherance of the Company’s business upon the Employee’s presentation of an itemized account of expenditures. | 41Expenses
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This Note, the Security Agreements, the Mortgages and the other Loan Instruments to which any Maker is a party constitute valid and legally binding obligations of each such Maker, enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting the rights of creditors generally and to general principles of equity, whether asserted in an action at law or in equity. | 36Enforceability
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Executive’s annual salary will be $405,000 (the “ Base Salary ”), paid in accordance with the Company’s payroll practices as in effect from time to time. The Base Salary will be reviewed annually by the Compensation Committee of the Board (the “ Committee ”). | 11Base Salary
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Tenant shall not, without the prior written consent of the Landlord, assign, mortgage, encumber or otherwise transfer this Lease or any interest herein directly or indirectly, by operation of law or otherwise, or sublet the Premises or any part thereof, or permit the use or occupancy of the Premises by any party other than Tenant (any such action, a " Transfer "). If at any time or from time to time during the Term, when no Event of Default has occurred and is continuing, Tenant desires to effect a Transfer, Tenant shall deliver to Landlord written notice (" Transfer Notice ") setting forth the terms of the proposed Transfer and the identity of the proposed assignee, sublessee or other transferee (each, a " Transferee "). Landlord shall not unreasonably withhold, condition or delay its consent to any assignment of this Lease or sublet of the Premises, subject to the conditions of this Article 12. Tenant shall also deliver to Landlord with the Transfer Notice an acceptable assumption agreement for Tenant's obligations under this Lease (in the case where the Transfer is a proposed assignment of this Lease) together with all relevant information reasonably requested by Landlord concerning the proposed Transferee to assist Landlord in making an informed judgment regarding the Transferee’s proposed use of the Premises (which use must be permitted by Applicable Laws), and the financial responsibility, creditworthiness, reputation, and business experience of the Transferee. The provisions of this Section 12.1 shall apply to a Transfer (by one or more Transfers) of a controlling portion of or interest in the stock or partnership or membership interests or other evidences of equity interests of Tenant as if such Transfer were an assignment of this Lease; provided that if equity interests in Tenant at any time are or become traded on a public stock exchange, the transfer of equity interests in Tenant on a public stock exchange shall not be deemed an assignment within the meaning of this Section 12.1 . | 7Assignments
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This Letter Agreement shall be governed by and construed exclusively in accordance with the internal laws of the State of Delaware, excluding that body of law relating to conflict of laws and choice of law. | 47Governing Laws
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Subject to the remaining terms of this Article IV, this Agreement shall be for an initial term that begins on the Effective Date and continues in effect through October 31, 2017 (the “ Initial Term ”) and, unless terminated sooner as herein provided, shall renew for successive one-year periods after the fifth anniversary of the Effective Date (each a “ Renewal Term ” and together with the Initial Term, the “ Term ”). If the Company or Executive desires to elect not to renew this Agreement, the Company or Executive must give written notice (which may be included in a Notice of Termination) to the other party at least 30 days before the expiration of the then-current Initial Term or Renewal Term, as applicable. In the event that one party provides the other with a written notice of election not to renew this Agreement pursuant to this Section 4.1, no further automatic extensions will occur and this Agreement shall terminate at the end of the then-existing Initial Term or Renewal Term, as applicable. If the Company elects not to renew this Agreement and Executive’s employment with the Company is not terminated, Executive shall continue as an at-will employee of the Company and this Agreement shall terminate, subject to Section 9.13, at the end of the current Term. | 89Terms
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Immediately after the consummation of the Transactions to occur on the Effective Date, (i) the fair value of the assets of the Borrower, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value of the property of the Borrower will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted after the Effective Date. | 80Solvency
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Capitalized terms used herein and not otherwise defined shall have the meanings given in the Lease. If there is any conflict between the terms, conditions and provisions of this Amendment and the terms and conditions of the Lease, the terms, conditions and provisions of this Amendment shall prevail. | 28Defined Terms
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Each Borrower and Subsidiary owns or has the lawful right to use all Intellectual Property necessary for the conduct of its business, without conflict with any rights of others. There is no pending or, to any Borrower's knowledge, threatened Intellectual Property Claim with respect to any Borrower, any Subsidiary or any of their Property (including any Intellectual Property) that if resolved adversely to such Borrower or Subsidiary would have a Material Adverse Effect. Except as disclosed on Schedule 6.10 , no Borrower or Subsidiary pays or owes any Royalty or other compensation to any Person with respect to any Intellectual Property. | 53Intellectual Property
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Maintain in effect and enforce policies and procedures reasonably designed to ensure compliance by the Loan Parties and their respective directors, officers and employees with (x) any OFAC Regulations and Sanctions controls and (y) the FCPA, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions . | 3Anti-Corruption Laws
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VENDOR shall not disclose the fact of, terms of, or subject matter of this Agreement to any third party without the prior written consent of SANOFI other than as required by law, rule or regulation. VENDOR will not use the name or logo of SANOFI or its Affiliates in advertising promotions or other commercial materials without SANOFI's prior written consent. To the extent SANOFI has approved a particular disclosure, VENDOR may reissue or reuse the contents of such disclosure without obtaining SANOFI’s prior written consent for such subsequent disclosure. | 71Publicity
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Any dispute or claim concerning any Stock Awards granted (or not granted) pursuant to the Plan or any disputes or claims relating to or arising out of the Plan shall be fully, finally and exclusively resolved by binding and confidential arbitration conducted pursuant to the rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in San Francisco. The Company shall pay all arbitration fees. In addition to any other relief, the arbitrator may award to the prevailing party recovery of its attorneys’ fees and costs. By accepting a Stock Award, Participants and the Company waive their respective rights to have any such disputes or claims tried by a judge or jury. | 6Arbitration
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This Agreement contains the entire agreement of the parties hereto relating to the subject matter hereof and supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof, and there are no written or oral terms or representations made by either party other than those made herein. No amendment or modification of this Agreement shall be valid or binding unless made in writing and duly executed by the party against whom enforcement of any such amendment or modification is sought and making specific references to this Agreement. This Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. This Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. | 59Miscellaneous
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This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile copies of signatures shall constitute original signatures for all purposes of this Agreement and any enforcement hereof. | 26Counterparts
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During the Employment Term, the Company will pay or reimburse the Executive for reasonable and necessary business expenses incurred by the Executive during the Employment Term in connection with the Executive’s duties on behalf of the Company in accordance with the Company’s travel and expense policy, as it may be amended from time to time, or other applicable Company Polices, following submission by the Executive of reimbursement expense forms in a form consistent with such expense policies. The Executive shall also be entitled to reimbursement of fees and expenses incurred in connection with maintaining Executive’s professional law license in the State of New York or any other State in the United States where the Company may relocate. | 41Expenses
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All non-competition, non-solicitation, non-disclosure and non-use, non-recruiting, intellectual property, and Agreement disclosure obligations under paragraphs three (3) through seven (7) of this Agreement shall survive the voluntary or involuntary termination of my employment for any reason and with or without cause, and no dispute regarding any other provisions of this Agreement or regarding my employment or the termination of my employment shall prevent the operation and enforcement of these obligations. | 85Survival
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This Warrant and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflicts of law provisions of the State of Nevada or of any other state. | 47Governing Laws
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John hereby acknowledges receipt by 180 of the Advances from the Company and hereby represents and warrants that the advances were utilized solely for bona fide 180 business expenses (including, without limitation, its development of the Youlab Global brand and for wages, travel, software development, inventory etc., related thereto). | 92Use Of Proceeds
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The Administrative Agent shall have received, in form and substance satisfactory to it, such additional certificates, documents and other information as the Administrative Agent shall reasonably request. | 59Miscellaneous
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All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or five days after deposit in the United States mail, postage prepaid, addressed (a) if to the Executive, to the Executive’s address as it appears in the records of the Company, and if to the Company, to United Continental Holdings, Inc., attention: Deputy General Counsel & Corporate Secretary, 233 South Wacker Drive, 11th Floor HDQLD, Chicago, IL 60606, or (b) to such other address as either party shall have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. | 65Notices
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Each Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) each Purchaser makes no representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Form 8-K as described in Section 4.4, (ii) each Purchaser shall not be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Form 8-K as described in Section 4.4 and (iii) each Purchaser shall not have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the Form 8-K as described in Section 4.4, unless the Company discloses to such Purchaser material non-public information and, in connection with such disclosure, such Purchaser executes a written agreement with the Company regarding the confidentiality and use of such information. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. | 20Confidentiality
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EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10. | 96Waiver Of Jury Trials
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The Parties agree that these General Releases shall be construed in accordance with the laws of the Commonwealth of Massachusetts without regard to choice or conflict of law principles. In the event that any provision contained in these General Releases shall, to any extent, be deemed invalid, illegal or unenforceable, the remainder of these General Releases shall not be affected thereby and each portion and provision of these General Releases shall be valid and enforceable to the fullest extent permitted. Any modifications or waiver of the terms set forth in these General Releases must be in writing and signed by parties. These General Releases may be executed in separate counterparts (including by means of facsimile), each of which is deemed to be an original and all of which taken together constitute one and the same agreement. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an original. | 59Miscellaneous
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As of the first date stated above ( “ Effective Date ” ), the Executive shall serve as the Company ’ s President. The Company will employ Executive as President and Executive agrees to work for the Company, at its Wilmington, Massachusetts facility, to perform the duties and responsibilities inherent in such position, and such other duties and responsibilities as the Company shall from time to time assign to Executive. | 33Effective Dates
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The Borrower shall use the proceeds of the Term Loans as purchase money to finance the acquisition of the Aircraft by the Borrower. No part of the proceeds of any Term Loan will be used, whether directly or indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulations T, U or X of the Board of Governors of the Federal Reserve System. | 92Use Of Proceeds
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The Company has insurance policies in full force and effect for such amounts as are sufficient for all requirements of Law and all agreements to which the Company is a party or by which it is bound, including professional liability policies covering professional services provided by all Physicians and all applicable Business Employees. Set forth on Section 4.24 of the Disclosure Schedule is a complete and correct list of all insurance policies and all fidelity bonds held by or applicable to the Company setting forth, in respect of each such policy, the policy name, policy number, carrier, term, type and amount of coverage and annual premium. No event relating to the Company has occurred which could reasonably be expected to result in a retroactive upward adjustment in premiums under any such insurance policies or which could reasonably be expected to result in a prospective upward adjustment in such premiums. Excluding insurance policies that have expired and been replaced in the Ordinary Course of Business, no insurance policy has been cancelled within the last two (2) years and, to the Knowledge of the Sellers, no threat has been made to cancel any insurance policy of the Company during such period. All such insurance will remain in full force and effect and all such insurance is assignable or transferable to the Purchaser. No event has occurred, including, without limitation, the failure by the Company to give any notice or information or the Company giving any inaccurate or erroneous notice or information, which limits or impairs the rights of the Company under any such insurance policies. | 51Insurances
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Each Party shall each bear their own costs and legal fees associated with the negotiation and preparation of this Agreement. | 25Costs
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Neither the failure on the part of any Credit Party to exercise, nor the delay on the part of any Credit Party in exercising any right, power or remedy hereunder, nor any course of dealing between any Credit Party, on the one hand, and any Grantor, on the other hand, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy hereunder preclude any other or the further exercise thereof or the exercise of any other right, power or remedy. | 63No Waivers
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Buyer represents and warrants to Seller, which representations and warranties shall be deemed made by Buyer to Seller as of the Effective Date and also as of the Closing Date that Buyer has the full right, power and authority to purchase the Property as provided in this Contract and to carry out Buyer’s obligations hereunder, and that all requisite action necessary to authorize Buyer to enter into this Contract and to carry out Buyer’s obligations hereunder has been taken. Buyer is not listed in Executive Order 13224, and Buyer has no present, actual knowledge that any other persons or entities holding any legal or beneficial interest whatsoever in Buyer are included in, owned by, controlled by, knowingly acting for or on behalf of, knowingly providing assistance, support, sponsorship or services of any kind to, or otherwise knowingly associated with any of the persons or entities referred to or described in Executive Order 13224, or banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control. Notwithstanding anything herein to the contrary, any breach by Buyer of any of the foregoing representations or warranties shall constitute a default by Buyer hereunder, and Seller may thereupon, at its option, terminate this Contract by giving written notice thereof, in which event the Earnest Money will be paid to Seller as liquidated damages, and neither Buyer nor Seller shall have any further rights or liabilities hereunder, except as otherwise provided herein. | 76Representations
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Notice shall be given to each party at the address indicated in the Securities Purchase Agreement or at such other address as provided to the other party in writing. | 65Notices
|
Except as otherwise provided in this Article, Purchaser agrees that Contractor shall be the owner of all inventions, technology, designs, works of authorship, mask works, technical information, computer software, business information and other information conceived, developed or otherwise generated in the performance of this Contract by or on behalf of Contractor. Purchaser assigns and agrees to assign all right, title, and interest in the foregoing to Contractor, including without limitation all copyrights, patent rights, trade secret rights and other intellectual property rights and further agrees to execute, at Contractor’s request and expense, all documentation necessary to perfect title in such materials in Contractor; provided that Contractor grants to Purchaser and its assignees and subsequent owners or operators of the Vessel a limited use license to all such intellectual property pursuant to this Article, including the terms set forth in Article 10(c) above. | 53Intellectual Property
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Each party agrees to indemnity and hold the other harmless from and against any and all loss, damage, claim, demand, liability or expense by reason of any damage or injury to persons (including loss of life) or property which may arise or become claimed to have arisen as a result of or in connection with the indemnifying party's (i) improvement, occupancy or use of the Premises or its site, or (ii) failure to conscientiously and promptly perform any of its obligations under this Lease. | 49Indemnifications
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Following the Consulting Period, you agree to continue to be available from time to time at the request of Polaris to answer questions, provide information, or assist in any litigation, claims or other matters regarding business matters that you were directly and substantially involved with or about which you may have material knowledge as a result of your employment with Polaris. Following the Consulting Period, Polaris will pay you for time you reasonably spend in connection with such assistance at the rate of $150.00 per hour. You further agree that you will not encourage or cooperate with other individuals or parties in bringing or asserting claims against Polaris. However, nothing in this Agreement prohibits you from reporting possible violations of federal or state law or regulation to any government agency or entity, including but not limited to the Equal Employment Opportunity Commission, Department of Justice, Securities and Exchange Commission, or any other agency, or from making other disclosures that are protected under the whistleblower provisions of law. | 24Cooperation
|
The “Effective Date” of the Plan, the date as of which the Plan was established, is January 1, 1979. This restatement of the Plan is generally effective October 27, 2014 (unless otherwise noted) and incorporates all amendments adopted effective through October 27, 2014. | 33Effective Dates
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This Agreement has been duly executed and delivered by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and by general principles of equity. The Purchaser has duly taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby. | 10Authorizations
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This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among such parties with respect to the subject matter hereof. | 38Entire Agreements
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This Agreement and all proceedings or counterclaims (whether based in contract, tort or otherwise) arising out of or relating to this Agreement or the transactions contemplated hereby, or any action of any Party or Five Star in the negotiation, administration, performance and enforcement hereof, shall be governed by, and construed in accordance with, the Laws of the State of Maryland, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland. | 47Governing Laws
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By accepting this offer, you agree, effective as of the Effective Date, to the confidentiality, noncompetition, and nonsolicitation provisions contained in the “Terms and Conditions of Employment” attached as Exhibit A , and that are incorporated herein by reference. You also agree that any and all employment disputes occurring during or after your employment with Supervalu are subject to mandatory arbitration as set forth in the “Terms and Conditions of Employment.” In addition, you acknowledge and agree that this Letter Agreement and the discussions and correspondences that led to this Letter Agreement shall constitute “Confidential Information” for purposes of the Confidentiality Agreement, executed in November 2015, by and between Supervalu and you (unless such information is already publicly available through no fault of your own). | 20Confidentiality
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This Amendment is subject to the general provisions set forth in the Loan Agreement, including but not limited to Sections 15.14, 15.15, and 15.16. | 59Miscellaneous
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The execution and delivery of this Agreement and the other documents and agreements to be executed by Purchaser as contemplated hereunder, the consummation of the transactions contemplated hereby or thereby, and the compliance with the terms and conditions hereof or thereof will not (i) contravene any provision of law to which Purchaser is subject or any statute, decree, rule, regulation, injunction, judgment, order, decree, ruling, charge, or other restriction binding upon Purchaser or contravene any order or permit applicable to Purchaser; or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of any obligation under, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party or by which it is bound. | 61No Conflicts
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The Executive shall be entitled to receive prompt reimbursement for any and all (i) reasonable relocation expenses incurred by him in connection with his relocation to the Company’s office in Fort Lauderdale, Florida, including, but not limited to, his travel and temporary housing expenses and (ii) reasonable expenses incurred by him during the Term in performing services hereunder, in accordance with the policies and procedures then in effect and established by the Company for its senior executive officers. Any reimbursement that the Executive is entitled to receive shall (i) be paid as soon as practicable and in any event no later than the last day of the Executive’s tax year following the tax year in which the expense was incurred, (ii) not be affected by any other expenses that are eligible for reimbursement in any tax year and (ii) not be subject to liquidation or exchange for another benefit. | 41Expenses
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This Agreement contains the entire agreement between the parties and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereto, and no party shall be liable or bound to any other party in any manner by any warranties, representations, guarantees or covenants except as specifically set forth in this Agreement. Purchaser acknowledges and agrees that it did not rely upon any statements or information, whether oral or written, provided by the Company, or any of its officers, directors, employees, agents or representatives, in deciding to enter into this Agreement or purchase the Shares. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. | 38Entire Agreements
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There shall not exist any pending litigation or investigation affecting or relating to (i) any Credit Party or any of its Subsidiaries that in the reasonable judgment of the Administrative Agent and Lenders could materially adversely affect the any Credit Party or any of its Subsidiaries, this Agreement or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (ii) this Agreement, the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date. | 58Litigations
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In case any one or more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, none of the parties hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the ABL Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. | 79Severability
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The headings in this Agreement are solely for convenience or reference and shall be given no effect in the construction or interpretation of this Agreement. | 48Headings
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Headings of the sections of this Agreement and the schedules are for convenience of the Parties only and shall be given no substantive or interpretative effect whatsoever. | 48Headings
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The execution, delivery and performance of this Subscription Agreement and the other Sale Documents by the Company and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the Board of Directors of the Company. | 9Authority
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Any notice required by the terms of this Award Agreement shall be given in writing and shall be deemed to be effective upon personal delivery or upon deposit with the U.S. Postal Service, by registered or certified mail, with postage and fees prepaid. Notice shall be addressed to the Company at its principal executive office and to the Participant at the address that he or she most recently provided to the Company. | 65Notices
|
This Agreement shall be governed by and construed under and in accordance with the laws of the state of Colorado, without giving effect to any choice or conflict of law provision or rule (whether the state of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of Colorado. | 47Governing Laws
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The provisions of this Award and the Plan are intended to be severable, and any illegal or invalid term shall not affect the validity or legality of the remaining terms. | 79Severability
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Termination or expiration of this Agreement will not relieve either Party of any liability which accrued hereunder prior to the effective date of such termination, nor preclude either Party from pursuing all rights and remedies it may have hereunder at law or in equity with respect to any breach of this Agreement, nor prejudice either Party’s right to obtain performance of any obligation arising hereunder. Section 1.1 (Definitions), Section 4.5 (Financial Records), Article 6 (Financial Terms), Article 7 (Confidentiality), Section 8.1 (Assignment and License Back of Data), Article 9 (Intellectual Property), Article 15 (Termination), Article 16 (Warranties and Disclaimers), Article 17 (Indemnification, Liability and Insurance) and Article 18 (Miscellaneous) shall survive any termination or expiration of this Agreement. In addition, any other provisions which by their nature are understood to survive the termination or expiration of this Agreement shall so survive. | 85Survival
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Landlord hereby warrants to Tenant that, other than CBRE, no real estate broker has or will represent Landlord in this transaction. Tenant hereby warrants to Landlord that no real estate broker other than Newmark Grubb Knight Frank and Avison Young (collectively together with CBRE, the “ Brokers ”) has or will represent Tenant in this transaction. Landlord and Tenant shall indemnify each other against and hold the other harmless from all liabilities, claims, and expenses (including reasonable attorneys’ fees) arising out of the breach of their respective warranty. Landlord shall compensate the Brokers pursuant to separate agreements between Landlord and the Brokers. | 15Brokers
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This Amendment shall be binding upon and inure to the benefit of the Borrower, the other Borrower Parties, each member of the Lender Group and their respective successors and assigns; provided, that the Borrower shall be entitled to delegate any of its duties hereunder or assign any of its rights or remedies set forth in this Amendment without the prior written consent of Administrative Agent in its sole discretion. No Person other than the Borrower, the other Borrower Parties and the Lender Group and, in the case of Section 6 hereof, the Releasees, shall have any rights hereunder or be entitled to rely on this Amendment and all third-party beneficiary rights (other than the rights of the Releasees under Section 6 hereof) are hereby expressly disclaimed. | 7Assignments
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The proceeds of the Initial Term Loan will be used on the Effective Date only to finance all or a portion of the consideration for the Citron Acquisition and fees and expenses related thereto. The proceeds of the Revolving Loans will be used only to finance the working capital needs and for general corporate purposes of the Borrower and its Subsidiaries, for payment of principal and/or interest due and owing by any Loan Party under any Permitted Convertible Notes, to finance a portion of the consideration for the Citron Acquisition, and to finance Permitted Acquisitions and acquisitions of abbreviated new drug applications and fees and expenses related thereto. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country or (iii) in any manner that would result in the violation of any Anti-Money Laundering Laws or Sanctions applicable to any party hereto. | 92Use Of Proceeds
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This section of the Agreement is a release of legal claims. Please carefully review this section with your attorney and do not sign this document unless you understand what this section says. | 74Releases
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Unless otherwise specifically provided in this Agreement, each Party shall pay its own expenses incident to this Agreement or the other Transaction Documents and all action taken in preparation for effecting the provisions of this Agreement and the other Transaction Documents. | 41Expenses
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I agree that following the Effective Date, I will provide reasonable assistance to and cooperate with the Company and its affiliates as to any claims, controversies, disputes, or complaints of which I have knowledge or that may relate to me or my employment or other relationships with Company or its affiliates. Such cooperation includes but is not limited to providing the Company and its affiliates with all information known to me related to the foregoing, meeting with counsel, and appearing and giving testimony in any forum. Company will reimburse me for any reasonable out-of-pocket expenses incurred by me in providing assistance under this Agreement. | 24Cooperation
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Unless otherwise specified, references in this Agreement to any Section or clause refer to such Section or clause as contained in this Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import in this Agreement refer to this Agreement as a whole, and not to any particular Section or clause contained in this Agreement. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”. | 23Construction
|
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DIRECT OR INDIRECT ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY ( A ) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, ( B ) MAKES THIS WAIVER VOLUNTARILY, AND ( C ) ACKNOWLEDGES THAT EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 5.15 . | 96Waiver Of Jury Trials
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In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of Investor and Company will be entitled to specific performance under this Amendment, and equitable and injunctive relief to prevent any actual or threatened breach under this Amendment, to the full extent permitted under applicable laws. Without limitation of the foregoing, Company acknowledges that the rights and benefits of Investor pursuant to Section I.G.1. of the Certificate of Designations are unique and that no adequate remedy exists at law if Company breaches or fails timely perform any of its obligations thereunder, that it would be difficult to determine the amount of damages resulting therefrom, that it would cause irreparable injury to Investor, and that any potential harm to Company would be adequately and fully compensable with monetary damages. Accordingly, Investor will be entitled to a compulsory remedy of immediate specific performance, temporary, interim, preliminary and final injunctive relief to enforce the provisions thereof, including without limitation requiring Company and its transfer agent, attorneys, officers and directors to immediately take all actions necessary to issue and deliver the number of Shares provided in Section II above, and prohibiting any Common Stock from being issued or transferred until after all Shares have been received by Investor in electronic form and fully cleared for trading, which requirements will not be stayed for any reason, without the necessity of posting any bond. Company hereby absolutely, unconditionally and irrevocably waives all objections and rights to oppose any motion, application or request by Investor to issue the Shares, and all rights to stay or appeal any resulting order, and any appeal by Company or on its behalf will be immediately and automatically dismissed. | 75Remedies
|
The parties to this Agreement: (i) shall not, without obtaining a written confirmation of the then-current rating of the Notes of each Conduit Purchaser by the Rating Agencies, waive any of the representations set forth in this Exhibit VI ; (ii) shall provide the Rating Agencies with prompt written notice of any breach of any representations set forth in this Exhibit VI , and (iii) shall not, without obtaining a written confirmation of the then-current rating of the Notes of each Conduit Purchaser by the Rating Agencies (as determined after any adjustment or withdrawal of the ratings following notice of such breach) waive a breach of any of the representations set forth in this Exhibit VI . | 63No Waivers
|
As of the RSA effective date, Mr. Hartman’s base salary will be reduced to $250,000 per annum. Mr. Brooks and Ms. Snyder will continue receiving their current annualized base salaries of $385,000 and $335,000, respectively. The Company will provide Mr. Hartman with market relocation assistance with respect to his move to the Houston metropolitan area. | 11Base Salary
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This Agreement shall bind and inure to the benefit of, and be enforceable by, the Parties and the express third party beneficiaries of this Agreement and their respective successors and permitted assigns. | 84Successors
|
The Borrowers have furnished to each Lender (i) the audited con-solidated balance sheet of the Borrowers and their Subsidiaries as of December 31, 2015, and the related audited consolidated statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended, prepared by Grant Thornton LLP and (ii) the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries as of March 31, 2016, and the related unaudited consolidated statements of in-come and cash flows for the Fiscal Quarter and year-to-date period then ended, certified by a Responsible Officer. Such financial statements fairly present in all material respects the consolidated financial condition of the Borrowers and their Subsidiaries as of such dates and the consolidated results of op-erations for such periods in conformity with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii). Since December 31, 2015, there have been no changes with respect to the Borrowers and their Subsidiaries which have had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. | 43Financial Statements
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None of the reports, financial statements, certificates or other written information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or delivered thereunder (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Closing Date, as of the Closing Date, it being understood that any such projected financial information may vary from actual results and such variations could be material. | 31Disclosures
|
This Agreement is issued, and the Options are granted, in Rye Brook, New York and will be governed and construed in accordance with the laws of the State of New York, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | 47Governing Laws
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This Agreement will be governed by an d construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions. Any claim or controversy between the Parties arising out of the circumstances and relationships contemplated by this Agreement, including disputes relating to the validity, construction or interpretation of this Agreement (“ Disputes ”), shall, upon written notice of the Company to NantWorks or NantWorks to the Company, as applicable, be referred for resolution by final, binding arbitration in accordance with the provisions of this Section 7.10. The arbitration shall be conducted by the Judicial Arbitration and Mediation Services, Inc. (or any successor entity thereto) (“ JAMS ”) under its rules of arbitration then in effect, except as modified in this Agreement. The arbitration shall be conducted in the English language, by a single arbitrator. The arbitrator shall engage an independent expert with experience in the sub ject matter of the Dispute to advise the arbitrator. With respect to any Dispute arising under this Agreement, the Parties and the arbitrator shall use all reasonable efforts to complete any such arbitration within six (6) months from the issuance of noti ce of a referral of any such Dispute to arbitration. The arbitrator shall determine what discovery will be permitted, consistent with the goal of limiting the cost and time which the Parties must expend for discovery; provided that the arbitrator shall pe rmit such discovery as he or she deems necessary to permit an equitable resolution of the Dispute. The Parties agree that the decision of the arbitrator shall be the sole, exclusive and binding remedy between them regarding the Dispute presented to the ar bitrator. Any decision of the arbitrator may be entered in a court of competent jurisdiction for judicial recognition of the decision and an order of enforcement. The arbitration proceedings and the decision of the arbitrator shall not be made public wit hout the mutual consent of the Parties and each Party shall maintain the confidentiality of such proceedings and decision unless each Party otherwise agrees in writing; provided that a Party may make such disclosures as are permitted for confidential infor mation under Section 7.11 below. Unless otherwise mutually agreed upon by the Parties, the arbitration proceedings shall be conducted in the County of Los Angeles in the State of California. The Parties agree that they shall share equally the cost of the arbitration filing and hearing fees, the cost of the independent expert retained by the arbitrator, and the cost of the arbitrator and administrative fees of JAMS. Each Party shall bear its own costs and attorneys’ and witnesses’ fees and associated cost s and expenses. Pending the selection of the arbitrator or pending the arbitrator’s determination of the merits of any Dispute, a Party may seek appropriate interim or provisional relief from any court of competent jurisdiction as necessary to protect the rights or property of that Party. | 47Governing Laws
|
Each Person executing this Agreement represents and warrants that he or she has authority to execute this Agreement as a binding contract of the Party for whom he or she is signing. | 9Authority
|
The provisions of this Section 7 shall apply during the Term of Employment. | 88Terminations
|
This document constitutes the entire agreement between the Parties regarding the matters described herein. This Agreement supersedes any prior agreements or representations between the Parties or any of them, except that Section 2.5 and 8.9 of the Employment Agreement, the Proprietary Rights Agreement that Short previously executed, the Parties’ Indemnification Agreement (with the exception noted in Section 3.1 above), and the Equity Instruments will continue in full force and effect according to their terms. There are no representations, agreements, arrangements, or understandings, oral or written, between the Parties relating to the subject matter of this Agreement that are not fully expressed herein. The Parties agree that no extrinsic evidence may be introduced to vary the terms hereof in any judicial proceeding involving this Agreement. | 38Entire Agreements
|
No Default or Event of Default has occurred and is continuing after giving effect to this Agreement or would result from the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. | 62No Defaults
|
The Company shall provide to the Executive all indemnification-related protections and benefits provided to senior executives of the Company. | 49Indemnifications
|
THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY WAIVES, AND AGREES TO CAUSE ITS AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. | 96Waiver Of Jury Trials
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Notices hereunder must be in writing, delivered personally or sent by registered or certified U.S. mail, return receipt requested, postage prepaid. Notices to the Company must be addressed to CommScope Holding Company, Inc., 1100 CommScope Place, SE, Hickory, North Carolina 28602, Attn: Corporate Secretary, or any other address designated by the Company in a written notice to Grantee. Notices to Grantee will be directed to the address of Grantee then currently on file with the Company, or at any other address given by Grantee in a written notice to the Company. | 65Notices
|
In reliance upon the representations and warranties of Borrowers set forth in Section 5 hereof and subject to the satisfaction of the conditions to effectiveness set forth in Section 6 hereof, Agent and each Lender acknowledges, confirms and agrees that (a) each of Hanna and CM Brazil is hereby released from all Obligations under the Security Agreement and each other Loan Document to which it is a party, (b) each of Hanna and CM Brazil shall no longer be, or be deemed to be, a "Guarantor", "Grantor", "Loan Party" or obligor of any nature under or pursuant to the Security Agreement or any other Loan Document, (c) Agent's Liens on any asset of each of Hanna and CM Brazil are hereby released and (d) the pledge of the Equity Interests of each of Hanna and CM Brazil by their respective parent are hereby released except for the pledge of sixty-five percent (65%) of the total outstanding voting Equity Interests thereof. The foregoing release is a limited release and shall not be deemed to constitute a release with respect to any other Guarantor, Grantor, Loan Party or obligor in respect of the Obligations. Upon the effectiveness of this Amendment, (i) Agent agrees to promptly deliver to Administrative Borrower, at Borrowers' expense, (A) such UCC-3 termination statements, terminations, releases, or other documents necessary or reasonably required to effect the foregoing release, (B) the certificates and other instruments representing the Equity Interests of Hanna, CM Brazil, PolyOne (Thailand) Co., Ltd. (f/k/a Star Color Co. Ltd.), ColorMatrix Argentina S.A., ColorMatrix Mexico S.A. de C.V., ColorMatrix South America, Ltd. and ColorMatrix do Sul pledged to Agent pursuant to the Security Agreement and released pursuant to this Amendment, and (C) such additional certificates or other instruments representing the assets owned by Hanna and CM Brazil, as applicable, as may be necessary or reasonably required to release Agent's Lien on such assets, and (ii) Agent authorizes Borrowers to file the UCC-3 termination statements, terminations, releases and other documents delivered by Agent pursuant to the foregoing subpart(i)(A). | 74Releases
|
The closing of the sale and purchase of the Company Equity Interests (the “ Closing ”) shall take place at the offices of Wachtell, Lipton, Rosen & Katz, 51 W. 52 nd Street, New York New York, at 10:00 a.m. (New York time) on the date that is three (3) Business Days after the satisfaction or written waiver (to the extent (i) permitted by applicable Law and (ii) signed by the party in whose favor such Closing Condition is for) of each of the Closing Conditions in accordance with Article X (other than those Closing Conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction in full or such waiver of those Closing Conditions at such time), or on such other date or at such other time or place as the Parties may agree in writing. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date ”. For all purposes under this Agreement and each other Transaction Agreement, (a) all matters that are to occur at the Closing will be considered to take place simultaneously and (b) the Closing shall be deemed effective as of the Effective Time. Notwithstanding anything to the contrary in this Agreement or any other Transaction Agreement, in no event shall the Closing occur prior to December 31, 2015 without the prior written consent of the Parties. | 18Closings
|
In the event of Executive's death during Executive's employment hereunder, Executive's employment shall terminate on the date of his death without further liability on the part of the Employer under this Agreement. | 27Death
|
This Agreement and the documents executed pursuant hereto supersede all negotiations, agreements and understandings among the Parties with respect to the subject matter hereof (except for the Confidentiality Agreement, which the Parties agree will terminate pursuant to its terms or be caused to be terminated as of the Closing) and constitute the entire agreement among the Parties with respect thereto. | 52Integration
|
Each of Holdings and the Borrower shall, and shall cause each Restricted Subsidiary to, insure and keep insured, in each case with reputable insurance companies, so much of its respective material properties to such an extent and against such risks, or in lieu thereof, in the case of Holdings or the Borrower, maintain or cause to be maintained a system or systems of self-insurance using an adequately capitalized captive insurance subsidiary, (a) as is customary in the case of corporations engaged in the same or similar business or having similar properties similarly situated and is considered adequate by Holdings and the Borrower or (b) as may be otherwise required by applicable law or any other Loan Document. Each such policy of liability or casualty insurance maintained by or on behalf of Loan Parties will (a) in the case of each liability insurance policy (other than workers’ compensation, director and officer liability or other policies in which such endorsements are not customary), name the Administrative Agent, on behalf of the Secured Parties, as an additional insured thereunder, (b) in the case of each casualty insurance policy, contain a lender’s loss payable clause or endorsement that names the Administrative Agent, on behalf of the Secured Parties, as the lender’s loss payee thereunder and (c) to the extent available from the applicable insurance provider, provide for at least 30 days’ (or such shorter number of days as may be agreed to by the Administrative Agent) prior written notice to the Administrative Agent of any cancellation of such policy (it being understood and agreed that the replacement of any insurance policy obtained by Alcoa or its subsidiaries with an insurance policy obtained by Holdings, the Borrower or any Subsidiaries in the context of the Spin-Off shall not be deemed to be such a cancellation and no notice shall be required to be delivered by the applicable insurer with respect thereto). With respect to each Mortgaged Property located in a US Jurisdiction that is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, the applicable Loan Party will obtain (in the case of each Mortgaged Property listed on Schedule 1.02 , not later than the later of (x) the date on which a Mortgage for such Mortgaged Property is executed and delivered to the Administrative Agent and (y) the Initial Funding Date, unless otherwise agreed by the Administrative Agent in its sole discretion), and will maintain, with reputable insurance companies, such flood insurance as is required under applicable law, including Regulation H of the Board (including polices of such insurance). The Borrower will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance so maintained. The provisions of this Section are subject to the penultimate paragraph of Section 4.02. | 51Insurances
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