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(i) At any time prior to the expiration of the Inspection Period, in the event that Buyers determine, in their sole discretion, that their due diligence review of the Assets and the Accounts Receivable are not satisfactory to Buyers, Buyers shall have the right to terminate this Agreement upon notice to Seller, at which point all of Buyers’ obligations hereunder shall cease. | 88Terminations
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The Company has all necessary power and authority to enter into, and be bound by the terms of, this Letter Agreement, and the execution, delivery and performance of the undertakings contemplated by this Letter Agreement have been duly authorized by the Company. | 9Authority
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Regardless of any action taken by the Company or any other Participating Company with respect to any or all income tax, social insurance, National Insurance Contributions, payroll tax, payment on account or other tax-related amounts, if any, or other tax-related withholding obligations in connection with any aspect of the Option, including the grant, vesting, or exercise of the Option, the subsequent sale of shares acquired pursuant to such settlement, or the receipt of any dividends (the “ Tax Withholding Obligations ”), the Participant acknowledges that the ultimate liability for all Tax Withholding Obligations legally due by the Participant is and remains the Participant’s responsibility. In addition to the Tax Withholding Obligations, the Company shall have the right to require the Participant to assume the obligation for such social insurance, payroll tax or other tax-related amounts, if any, as are required by law to be paid by the Participating Company Group with respect to the Option or the shares acquired pursuant thereto which the Participating Company Group determines, in its discretion, to charge to the Participant (the “ Employer Tax Obligations ,” and, together with the Tax Withholding Obligations , the “ Tax Obligations ”). The Participant acknowledges that the Company (a) makes no representations or undertakings regarding the treatment of any Tax Obligations and (b) does not commit to structure the terms of the grant or any other aspect of the Option to reduce or eliminate the Participant’s liability for Tax Obligations. At the time of exercise of the Option or as otherwise required by the Company, the Participant shall pay or make adequate arrangements satisfactory to the Company to satisfy all Tax Obligations. In this regard, at the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company or any other Participating Company, the Participant hereby authorizes withholding of all applicable Tax Obligations from payroll and any other amounts payable to the Participant, and otherwise agrees to make adequate provision for withholding of all applicable Tax Obligations, if any, by each Participating Company which arise in connection with the Option. Alternatively, or in addition, if permissible under applicable law, including Local Law, the Company or any other Participating Company may (i) sell or arrange for the sale of shares acquired by the Participant to satisfy the Tax Obligations, and/or (ii) withhold in shares, provided that only the amount of shares necessary to satisfy the minimum amount of Tax Withholding Obligations required by applicable law, including Local Law, is withheld. Finally, the Participant shall pay to the Company or any other Participating Company any amount of the Tax Obligations that that cannot be satisfied by the means previously described. The Company shall have no obligation to process the exercise of the Option or to deliver shares until the Tax Obligations as described in this Section have been satisfied by the Participant. | 86Tax Withholdings
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Schedule 4.7 sets forth a list, as of the Closing Date, of all of the Subsidiaries of the Borrower and, as to each such Subsidiary, the percentage ownership (direct and indirect) of the Borrower and each direct owner thereof. Except for the ownership interests expressly indicated on Schedule 4.7 , as of the Closing Date, there are no ownership interests, warrants, rights, options or other equity securities, or other Capital Stock of any Subsidiary of the Borrower outstanding or reserved for any purpose. All outstanding ownership interests of each Subsidiary of the Borrower are duly and validly issued, fully paid and nonassessable. | 83Subsidiaries
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The Lenders and the Administrative Agent shall have received all fees required to be paid, and all reasonable expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date and (ii) each Departing Lender shall have received payment in full of all of the “Obligations” under the Prior Credit Agreement that are owing to it (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Prior Credit Agreement). | 42Fees
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This Amendment shall be effective as of the date first written above; provided that on or before such date the Administrative Agent shall have received (i) copies of this Amendment duly executed by the Borrower, the Administrative Agent and the Required Lenders and (ii) the Administrative Agent’s and its affiliates’ fees and expenses (including fees and expenses of counsel for the Administrative Agent) in connection with this Amendment. | 34Effectiveness
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This Agreement may be signed in counterparts, both of which shall be deemed an original, but both of which, taken together shall constitute the same instrument. A signature made on a faxed or electronically mailed copy of the Agreement or a signature transmitted by facsimile or electronic mail shall have the same effect as the original signature. The section headings used in this Agreement are intended solely for convenience of reference and shall not in any manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective personal representatives, agents, attorneys, executors, administrators, heirs, successors and assigns. | 59Miscellaneous
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The representations and warranties made in this Agreement will not survive the Plan Effective Date. Covenants and agreements that by their terms are to be satisfied after the Plan Effective Date shall survive until satisfied in accordance with their terms. | 98Warranties
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The parties hereto acknowledge that money damages would not be an adequate remedy at law if any party fails to perform in any material respect any of its obligations hereunder and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law, in equity or, after the Closing, as provided in this Agreement, shall be entitled to seek to compel specific performance of the obligations of any other party under this Agreement and appropriate injunctive relief may be applied for and granted in connection therewith, in each case, without the posting of any bond, in accordance with the terms and conditions of this Agreement in any court of the United States or any state thereof having jurisdiction, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law. No remedy permitted under this Agreement shall be exclusive of any other remedy permitted under this Agreement. | 81Specific Performance
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Upon satisfaction of the conditions precedent in Section 3.1 , this Third Amendment shall be effective as of December 12, 2016. | 34Effectiveness
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Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 4.4(f), each notice or other communication required to be delivered or otherwise provided to the Administrative Agent (or its delegate) shall be deemed to have been given upon the Administrative Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day. | 65Notices
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Purchaser shall pay the cost of the premium for the Title Policy and any Survey prepared by Purchaser. | 90Titles
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Without regard to principles of conflicts of law, this Agreement, and all claims of causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be construed and enforced in accordance with and governed by the laws of the State of Texas applicable to contracts made and to be performed entirely within such state and the laws of the United States of America. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. | 96Waiver Of Jury Trials
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You hereby agree that the covenants set forth in Sections 12(a), (b), (c) and (d) are reasonable with respect to their scope, duration, and geographical area. If the final judgment of a court of competent jurisdiction declares that any term or provision of Sections 12(a), (b), (c) or (d) is invalid or unenforceable, you and the Company hereby agree that the court making the determination of invalidity or unenforceability shall have the power to reform the unenforceable term or provision, including to delete, replace, or add specific words or phrases, but only to the narrowest extent necessary to render the provision valid and enforceable (provided that in no event shall the length of any restrictive covenant or its scope be extended or expanded), and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment on enforceability may be appealed. Your agreement to the restrictions provided for in this Agreement and the Company’s agreement to grant the Award are mutually dependent consideration. Therefore, notwithstanding any other provision to the contrary in this Agreement, if the enforceability of any material restriction applicable to you as provided for in this Section 12 is challenged and found unenforceable by a court of law, then the Company shall have the right to terminate this Agreement and recover from you all shares of Common Stock paid to you pursuant to this Agreement and any amounts received by you on the date of sale, transfer, or other disposition if you have sold, transferred, or otherwise disposed of any Restricted Shares. This provision shall be construed as a return of consideration or ill-gotten gains due to the failure of your promises and consideration under the Agreement, and not as a liquidated damages clause. In addition, in the event of the Company’s termination of this Agreement, you shall immediately forfeit all unvested Restricted Shares. You further hereby agree that, in the event of a breach by you of any of the provisions of Sections 12(a), (b), (c) or (d), monetary damages shall not constitute a sufficient remedy. Consequently, in the event of any such breach or threatened breach, the Company or a System Company may, in addition to and without prejudice to other rights and remedies existing in its favor, apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof, in each case without the requirement of posting a bond or proving actual damages and without having to demonstrate that money damages would be inadequate. Such remedies shall not be deemed the exclusive remedies for a breach, but shall be in addition to all remedies available at law or in equity, including, but not limited to, attorneys’ fees and costs. You hereby agree and acknowledge that the restrictions contained in Sections 12(a), (b), (c) and (d) do not preclude you from earning a livelihood, nor do they unreasonably impose limitations on your ability to earn a living. You acknowledge that you have carefully read this Agreement and you have given careful consideration to the restraints imposed upon you by this Agreement, and you are in full accord as to their necessity for the reasonable and proper protection of confidential and proprietary information of any System Company now existing or to be developed in the future. | 37Enforcements
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This Release shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts made and to be performed solely within such State. | 47Governing Laws
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Except as would not reasonably be expected to have a Material Adverse Effect, each of the Partnership Entities carries or is covered by insurance from insurers of recognized financial responsibility in such amounts and covering such risks as is reasonably adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Partnership Entities are in full force and effect; each of the Partnership Entities are in compliance with the terms of such policies in all material respects; and none of the Partnership Entities has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance; there are or will be no claims by any of the Partnership Entities under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and none of the Partnership Entities has been notified in writing that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect. | 51Insurances
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Subject to the terms and conditions of this Agreement, from time to time after the Closing, the Company and each Purchaser agree to cooperate with one another, and at the request of the Company or the Purchaser, as applicable, to execute and deliver any further instruments or documents and take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the Contemplated Transactions and to otherwise carry out the intent of the parties hereunder. | 45Further Assurances
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References in the singular shall include the plural, and vice versa, unless the context otherwise requires. References in the masculine shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meanings of the provisions hereof. Neither party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions of this Agreement, and all language in all parts of this Agreement shall be construed in accordance with its fair meaning, and not strictly for or against either party. | 23Construction
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Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting this Agreement. | 48Headings
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This Agreement together with the other Credit Documents and the Security Documents represents the entire agreement of each of the Grantors and the Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, the Collateral Agent or any other Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents or the Security Documents. | 52Integration
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The BORROWER hereby agrees to indemnify, defend, reimburse and hold harmless the BANK and each of its affiliates, and all the directors, officers, employees, agents, legal counsel and advisors of the BANK (each, an "INDEMNIFIED PARTY") from and against all claims, actions, proceedings, suits, damages, losses, liabilities, costs and expenses, including the fees and out-of-pocket expenses of one firm of counsel for all such INDEMNIFIED PARTIES, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such INDEMNIFIED PARTIES, taken as a whole (and, in the case of an actual or perceived conflict of interest where the INDEMNIFIED PARTY affected by such conflict informs the BORROWER of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected INDEMNIFIED PARTY and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected INDEMNIFIED PARTY), which may be incurred by or asserted against any INDEMNIFIED PARTY in connection with, or arising out of, or relating to any LOAN (or the use or proposed use of the proceeds therefrom), any transaction or proposed transaction (whether or not consummated), contemplated by this AGREEMENT or any LOAN DOCUMENT (other than any TAXES); provided that such indemnity shall not, as to any INDEMNIFIED PARTY, be available to the extent that such claim, action, proceeding, suit, damage, loss, liability, cost or expense (a) is determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (i) the gross negligence, bad faith or wilful misconduct of such INDEMNIFIED PARTY or (ii) a claim brought by the BORROWER against such INDEMNIFIED PARTY for material breach in bad faith of such INDEMNIFIED PARTY'S obligations hereunder or (b) results from a proceeding that does not involve an act by the BORROWER or any of its AFFILIATES and that is brought by an INDEMNIFIED PARTY against any other INDEMNIFIED PARTY. This SECTION 8.01 shall not apply with respect to taxes other than any taxes that represent losses, claims or damages arising from any non-tax claim. | 50Indemnity
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In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument. | 79Severability
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The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and any documents, certificates or evidence required to be delivered under §4.3.3. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. | 7Assignments
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Each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain Extensions of Credit hereunder, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the Extensions of Credit to it, if any, on the terms and conditions of this Agreement and any Notes. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents to which it is a party or, in the case of the Borrower, with the Extensions of Credit to it, if any, hereunder, except for ( a ) consents, authorizations, notices and filings described in Schedule 5.4 , all of which have been obtained or made prior to the Restatement Effective Date, ( b ) filings to perfect the Liens created by the Security Documents, ( c ) filings pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. ), in respect of Accounts of the Borrower and its Restricted Subsidiaries the Obligor in respect of which is the United States of America or any department, agency or instrumentality thereof, ( d ) establishment of assignment of Restricted Government Accounts by or pursuant to the order of a court of competent jurisdiction and ( e ) consents, authorizations, notices and filings which the failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by the Borrower, and each other Loan Document to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party. This Agreement constitutes a legal, valid and binding obligation of the Borrower and each other Loan Document to which any Loan Party is a party when executed and delivered will constitute a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). | 10Authorizations
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During the Advisory Period you shall receive a monthly payment equal to the quotient of (i) one (1) times the greater of (I) the sum of your Base Salary and Target Bonus as in effect as of immediately prior to execution of the Employment Agreement and (II) the sum of your Base Salary and Target Bonus as in effect immediately prior to your Separation divided by (ii) twelve (12). | 42Fees
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The Bank shall have received the Borrower’s request for such Revolving Loan as required under Section 2.2. | 65Notices
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The term of this Agreement shall be from and after the date hereof through and including the earlier of (i) the date on which the Customer has fully satisfied its obligations to Bank pursuant to the terms and conditions of the Bank Credit Agreement and Bank has released its lien on the Bank Collateral or (ii) the date on which Customer has satisfied its obligations to RCA pursuant to the terms of the RCA Purchase Agreement and Customer has terminated the RCA Purchase Agreement (the “ Term ” ). Immediately upon the occurrence of the event described in the foregoing clause “ (ii), ” the Bank ’ s security interest and lien in the Specified Accounts shall automatically attach and Bank (a) shall no longer be deemed to have released from the Bank Collateral its security interest in and lien on the Specified Accounts Receivables and (ii) shall be permitted to take any and all such action as Bank shall deem necessary and appropriate to evidence Bank ’ s first priority perfected security interest in such Specified Accounts, including without limitation the filing of UCC financing statements. In the event the Customer has satisfied its obligations to RCA pursuant to the terms of the RCA Purchase Agreement, the Customer has terminated the RCA Purchase Agreement, RCA has received payment in full for all purchased Specified Accounts Receivable and the Customer has not satisfied its obligations to Bank under the terms of the Bank Credit Agreement, then (i) this Agreement shall be deemed terminated, except as to any obligations due by RCA or Bank to the other under Section 7 hereof, and (ii) Bank shall no longer be deemed to have released from the Bank Collateral its security interest in and lien on the Specified Accounts Receivable. | 89Terms
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Each Borrower hereby agrees to protect, indemnify, pay and save harmless each Issuing Lender and any of its Affiliates that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which such Issuing Lender or any of its Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful misconduct of such Issuing Lender as determined by a final non-appealable judgment of a court of competent jurisdiction or (B) the wrongful dishonor by such Issuing Lender or any of such Issuing Lender’s Affiliates of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Official Body. | 50Indemnity
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Each of the Borrower and the Significant Subsidiaries has good title to, or valid leasehold interests in, all its material properties and assets, except for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and that would not reasonably be expected to result in a Material Adverse Effect, and none of such property or assets is subject to any Lien except as permitted by Section 6.2 . | 57Liens
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In the event of any Dispute, the Parties will first attempt to resolve such Dispute by referring it to the senior management of the Parties and Transporter (if applicable) for resolution. If such Dispute has not been resolved within fifteen (15) Days after such referral to the senior management of the Parties and Transporter (if applicable), then any Dispute (other than a Dispute submitted to an Expert under Section 22.2.1) shall be exclusively and definitively resolved through final and binding arbitration, it being the intention of the Parties that this is a broad form arbitration agreement designed to encompass all possible Disputes under this Agreement. | 6Arbitration
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Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. In case any provision in or obligation under this Agreement or any other PMH Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. | 79Severability
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All provisions of this Mortgage shall be governed by the laws of the State of Florida. | 4Applicable Laws
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Governing Law . This Agreement and the other Loan Documents, unless expressly set forth therein, shall be governed by, and construed in accordance with, the law of the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), without reference to the conflicts of law principles thereof. | 47Governing Laws
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For the avoidance of doubt, the Borrowers shall indemnify all applicable Lenders for breakage costs incurred in connection with the Specified Prepayment and the Commitment Reduction in accordance with Section 2.13 of the Existing Credit Agreement. | 49Indemnifications
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Each Plan to which any Seller, Guarantor or its Subsidiaries make direct contributions, and, to the knowledge of each Seller, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. | 39Erisa
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There is no pending Proceeding against the Shareholder that involves the Shares or that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement and, to the knowledge of the Shareholder, no such Proceeding has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Proceeding. | 58Litigations
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The proceeds of the Loans will be used as set forth in Section 3.13 . No Borrower will request any Borrowing or Letter of Credit, and no Borrower shall use, and each Borrower shall procure that its Subsidiaries shall not use, the proceeds of any Borrowing or Letter of Credit (A) for any payments 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 Sanctioned Person or in any Sanctioned Country in violation of any Sanctions, or (C) in any other manner that would result in the violation of any Sanctions applicable to any party hereto. | 92Use Of Proceeds
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The terms and conditions (including, without limitation, the exercise period of the Stock Appreciation Right, the vesting schedule applicable thereto and the impact of any termination of service on the Participant’s rights with respect to the Stock Appreciation Right) applicable with respect to (i) Stock Appreciation Rights granted in tandem with an Option shall be substantially identical (to the extent possible taking into account the differences related to the character of the Stock Appreciation Right) to the terms and conditions applicable to the tandem Options and (ii) freestanding Stock Appreciation Rights shall be substantially identical (to the extent possible taking into account the differences related to the character of the Stock Appreciation Right) to the terms and conditions that would have been applicable under Section 6 above were the grant of the Stock Appreciation Rights a grant of an Option. In no event shall the term of a Stock Appreciation Right exceed a period of ten years from the date of grant. | 89Terms
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The Company shall reimburse the Executive for all reasonable expenses incurred by the Executive (in accordance with the policies and procedures in effect for senior executives of the Company) in connection with the Executive’s services under this Agreement. The Executive shall account to the Company for expenses in accordance with policies and procedures established by the Company. | 41Expenses
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Any Proceeding seeking to obtain a pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration in connection with this Agreement shall and may be brought in the Delaware Court of Chancery or, where such court does not have jurisdiction, any state or federal court within the State of Delaware (“ Delaware Courts ”), and each of the Parties hereby irrevocably and unconditionally consents to the exclusive jurisdiction of the Delaware Courts (and of the appropriate appellate courts thereto) in any such Proceeding and irrevocably and unconditionally waives any objection to venue laid therein, any objection on the grounds of forum non conveniens, or any objection based on or on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such Proceeding in any Delaware Court (and of the appropriate appellate courts thereto). Each Party hereby irrevocably and unconditionally consents and agrees that service of process in any such Proceeding may be served on any Party anywhere in the world, whether within or without the State of Delaware, in any manner permitted by Applicable Law or, without limiting the foregoing, in the manner provided for notices in Section 8.01 . | 21Consent To Jurisdiction
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The Parties shall with reasonable diligence do all things and provide all reasonable assurances as may be required to consummate the transactions contemplated by this Agreement, and each Party shall provide such further documents or instruments required by any other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement and to carry out its provisions, whether before or after the Closing. | 45Further Assurances
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In the event of any termination of this Agreement pursuant to Section 5.1 , there shall be no further liability or obligation hereunder on the part of any party hereto with respect to which this Agreement is terminated; provided , however , that the covenants set forth in Section 2.1(e) , Section 3.1(a)(i) and Section 3.2 shall survive the termination of this Agreement until the Termination (as defined in the SPV LPA) of the Investor pursuant to the SPV LPA; nothing contained in this Agreement (including this Section 5.2 ) shall relieve any party from liability for any Willful Breach of any covenant or agreement contained in this Agreement, in each case, which occurred prior to such termination. | 85Survival
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The parties agree to cooperate fully and execute any and all further documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. | 24Cooperation
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The term of Executive’s employment with the Company shall commence on the consummation of the spin-off from HCP, Inc. (“ HCP ”) of the Company (such spin-off, the “ Spin ” and such date, the “ Effective Date ”) and shall continue until and including the fourth (4th) anniversary of the Effective Date unless earlier terminated as provided herein (the “ Term ”). Notwithstanding anything herein to the contrary, this Agreement shall automatically terminate without any action on the part of any person and be void ab initio if the Spin is not consummated and neither the Company nor any other person shall have any liability to Executive under this Agreement if the Spin is not consummated. | 89Terms
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All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery or fax, if sent to Rodman, at the address set forth on the first page hereof, e-mail: [email protected], Attention: Head of Investment Banking, and if sent to the Company, to the address set forth on the first page hereof, email: [email protected] and [email protected], Attention: Chief Executive Officer. Notices sent by certified mail shall be deemed received five days thereafter, notices sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt, and notices delivered by fax shall be deemed received as of the date and time printed thereon by the fax machine. | 65Notices
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THIS AMENDMENT NO. 5 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. | 47Governing Laws
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This Agreement shall be binding upon the parties and their respective permitted assigns. | 84Successors
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Subject to the provisions of Section 8.2(a) , each of the Term Agent, the Term Lenders, each Credit Party and each of their Related Persons, is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein. Each Credit Party and each Secured Party acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions. | 10Authorizations
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Each of the Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except to the extent that the failure to have such title or leasehold interest could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect . The property of the Borrower and its Subsidiaries is subject to no material Liens, other than Permitted Liens. | 57Liens
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Each Loan Party will comply with all Applicable Laws and the orders of any Governmental Authority except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, each Loan Party shall: (a) conduct its operations and keep and maintain its Real Estate in compliance with all Environmental Laws; and (b) implement any and all investigation, remediation, removal and response actions that are necessary to comply with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal, transportation or Release of any Hazardous Materials on, at, in, under, above, to, from or about any of its Real Estate. The Loan Parties shall (a) notify the Administrative Agent promptly after such Person becomes aware of any violation of or non-compliance with any Environmental Laws or any Release on, at, in, under, above, to, from or about any Real Estate that could reasonably be expected to result in a Material Adverse Effect; and (b) promptly forward to Administrative Agent a copy of any order, notice, request for information or any communication or report received by such Person in connection with any such violation or Release or any other matter that could reasonably be expected to result in a Material Adverse Effect, in each case whether or not any Governmental Authority has taken or threatened any action in connection with any such violation, Release or other matter. | 19Compliance With Laws
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Without limiting anything in this Section 2 , CAC will, and will cause its controlled subsidiaries to, use its commercially reasonable efforts and continue to cooperate with the Company and other parties in the implementation of the Restructuring, including providing, making available and/or providing access to the premises, properties, businesses, operations, books and records and other information that is reasonably requested in connection with implementing the Restructuring (subject to existing confidentiality obligations among various parties, attorney/client and other privileges and immunities and other customary limitations appropriate under the circumstances) and responding timely, and causing applicable personnel (including CES personnel) to respond timely, to such requests. | 24Cooperation
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The Loan and Security Agreement and any and all other documents executed in connection with the Loan and Security Agreement, including, without limitation, any Amendments thereto, shall hereinafter be collectively referred to as the “Loan Documents”. Capitalized terms used herein and in the recitals hereto, but not defined herein or therein, shall have the meaning given them in the Loan Documents. | 29Definitions
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Each of the parties hereto agrees that damages at law are an inadequate remedy for any breach of this Agreement and that, in the event of any breach by a party, the Company, the Manager and the other parties hereto are and shall be, to the fullest extent permitted by law, entitled to obtain a decree or decrees of specific performance entitling it or them to seek a temporary restraining order, preliminary injunction, or permanent injunction to specifically enforce and require specific performance by such breaching party of the terms and provisions of this Agreement. Nothing contained in this Section 10.7 shall be deemed a waiver of any claim or defense of any party hereto to an action brought by any other party under this Section 10.7, except as specifically set forth herein with respect to entitlement to specific performance. | 81Specific Performance
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The Executive shall be responsible for the payment of any and all required federal, state, local and foreign taxes incurred, or to be incurred, in connection with any amounts payable to the Executive under this Agreement. Notwithstanding any other provision of this Agreement, the Company Group may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes, including without limitation any applicable employment taxes that are required to be withheld by applicable laws and regulations. | 87Taxes
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The provisions of this Article II shall terminate with respect to all entities other than the Company immediately prior to the consummation of an initial Public Offering or Qualified Merger. | 88Terminations
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This document incorporates into one document all of the provisions of the Plan, as amended and in effect as of August 1, 2016. | 2Amendments
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Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of the lesser of $120,000 or one percent (1%) of the average of the Company’s total assets at year end of the last two completed fiscal years other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company. | 91Transactions With Affiliates
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The insurance policies held by Parent (collectively, the “ Insurance Policies ”) are of the type and in the amounts customarily carried by Persons conducting a business similar to Parent and Company and are sufficient for compliance with all applicable Laws and contracts to which Parent or Company is a party or by which it is bound. There are no claims related to the Business pending under any of the Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. None of Parent or any of its Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision in any such Insurance Policy. | 51Insurances
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In calculating the threshold set forth in Sections 7.2(b)(i) and the amounts otherwise payable to an Indemnified Party, the amount of any indemnified Losses shall be computed net of (i) payments actually recovered by the Indemnified Party under any insurance policy with respect to such Losses (after giving effect to any applicable deductible or retention and any out of pocket costs incurred by the Indemnified Party in connection therewith), and (ii) any amounts actually recovered by the Indemnified Party from any other Person with respect to such Losses (after giving effect to any out of pocket costs incurred by the Indemnified Party in connection therewith). In the event an insurance recovery or third party recovery relating to an indemnification payment is received after the Indemnifying Party or the Agent, as the case may be, has made an indemnification payment under this Agreement that did not take into account such insurance recovery or third party recovery, the Indemnified Party shall promptly pay the Indemnifying Party or the Agent, as the case may be, an amount equal to the lesser of such insurance recovery or third party recovery and the amount of the related indemnification payment. Each Indemnified Party shall use commercially reasonable efforts to mitigate the amount of Losses for which it may be entitled to indemnification hereunder. | 51Insurances
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This Agreement may not be amended except by an instrument in writing signed by the Buyer and the Seller. By an instrument in writing, the Buyer, on the one hand, or the Seller, on the other hand, may waive compliance by the other with any term or provision of this Agreement that such other party was or is obligated to comply with or perform. | 2Amendments
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This Agreement and each other Document constitute the legal, valid and binding obligations of the Purchaser and the Collateral Agent, enforceable against the Purchaser or the Collateral Agent as the case may be in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. | 13Binding Effects
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Buyer is hereby directed to withhold from the proceeds allocable to the sale and delivery of crude oil hereunder the amount of severance taxes. | 87Taxes
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The representations and warranties set forth in Section 4 hereof shall be true and correct on such date in all respects. | 76Representations
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This Agreement may be executed in counterparts, each of which constitutes an original, but all of which, taken together, constitute the same instrument. | 26Counterparts
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The Borrower and the Restricted Subsidiaries each have good and valid title to, or valid leasehold interest in, all material Property owned by it, and all such assets and Property are subject to no Liens other than Permitted Encumbrances and other Liens permitted under Section 8.03. The Borrower and each of the Restricted Subsidiaries have good record and marketable title to, or valid leasehold interests in, its owned or leased Mortgaged Real Property. Except as would not reasonably be expected to have a Material Adverse Effect, neither the business nor the properties of any Loan Party is affected by any Force Majeure Event. | 57Liens
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If Guarantor fails to timely perform its obligations under this Guaranty, Lender may from time to time, and without first requiring performance by Borrower or exhausting any or all security for the Loan, bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder, and to collect in any such action compensation for all documented Losses and Liabilities actually sustained or incurred by Lender for the failure of Guarantor to perform its obligations, together with interest thereon at the highest rate of interest then applicable to the Principal Amount of the Loan as set forth in the Note or the Loan Agreement. | 75Remedies
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Upon payment in full of all outstanding Debenture and Fee Debentures purchased hereunder, together with all other charges, fees and costs due and payable under this Agreement or under any of the Transaction Documents, the Company shall have the right to terminate this Agreement upon written notice to the Buyer. | 88Terminations
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Subject to the terms and conditions set forth herein, Borrower may request an Issuing Bank to issue Letters of Credit in Dollars for the account of Borrower or the account of a Subsidiary under the Revolving Facility ( provided that Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for the account of a Subsidiary). If at any time there is more than one Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing Bank is to issue any particular Letter of Credit. The Issuing Banks shall have no obligation to issue, and no Borrower shall request the issuance of, any Letter of Credit at any time if after giving effect to such issuance, (i) the LC Exposure would exceed $35,000,000 or (ii) the Aggregate Revolving Credit Exposures would exceed the lesser of (x) the Total Revolving Credit Commitments and (y) the Borrowing Base. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by Borrower to, or entered into by Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Issuing Bank shall be required to issue any Letter of Credit that is not a standby Letter of Credit. | 46General
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Nothing contained herein will confer upon the Executive the right to be retained in the service of the Company or its subsidiaries, nor will it interfere with the right of the Company or its subsidiaries to discharge or otherwise deal with the Executive without regard to the existence of this Agreement. This Agreement (which expressly includes the Preamble), together with those certain agreements expressly referred to herein, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the subject matter. | 38Entire Agreements
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Upon Changes in Capitalization, Merger, Asset Sale, Dissolution or Liquidation . | 0Adjustments
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This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made and performed entirely in Ohio, without regard to any law that would result in the application of the laws of another jurisdiction. | 47Governing Laws
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Mr. Schultz hereby covenants that at any time after his Retirement Date, or any earlier Termination of his employment with the Bank, he will cooperate with the Bank to the extent reasonably necessary to assist in the transition of his responsibilities and in any litigation or administrative proceedings involving any matters with which Mr. Schultz was involved during his employment. The Bank will reimburse Mr. Schultz for reasonable expenses, if any, incurred in providing such assistance. | 24Cooperation
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GTHC and Avalon agree to indemnify, defend and hold harmless each other from and against any liability or expense arising out of any claim asserted by any third party for brokerage or finder's fees or agent's commissions, based on an allegation that the other impliedly or expressly engaged such claimant as a finder, broker or agent, or brought such claimant into the negotiations between Avalon and GTHC. | 15Brokers
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Each Loan Party and each of its Subsidiaries own, or hold licenses in, or otherwise has the rights to use, all material trademarks, trade names, copyrights, patents, and licenses that are necessary to the conduct of its business as currently conducted. | 53Intellectual Property
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Vendor is a non-reporting company and financials are unaudited. It a condition of the release of the Purchase Price from escrow are that the financial statements be audited by auditors licensed by the PCAOB to ensure disclosure of the financial condition and operating results for the last two years under the rules of United States generally accepted accounting principles (“US GAAP”) or from the date of incorporation of the Company whatever is greater. | 43Financial Statements
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In the event that the Closing shall not have occurred with respect to a Buyer on or before the third (3rd) Business Day following the date of this Agreement due to the Company’s or such Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above (and the nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date without liability of any party to any other party; provided , however , that if this Agreement is terminated pursuant to this Section 9.k , the Company shall be obligated to reimburse each of the Buyers (so long as such Buyer is not a breaching party) for its reasonable expenses (including attorneys’ fees and expenses) associated with the Closing. | 88Terminations
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The parties agree that certain matters in which the Executive will be involved during the Employment Period may necessitate the Executive's cooperation in the future. Accordingly, during the twenty-four (24) month period following the termination of the Executive's employment for any reason, to the extent reasonably requested by the Company, the Executive shall cooperate with the Company, the Company Affiliates and its or their counsel, in connection with matters arising out of or relating in any way to the Executive's service to the Company and the Company Affiliates, including information requests relating to the business or affairs of the Company or any Company Affiliate, as well as any investigation, litigation, arbitration or other proceeding related to the business or affairs of the Company or any Company Affiliate, other than in connection with any dispute between the Executive and the Company or any Company Affiliate; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive's other activities, including limiting Executive’s travel to the extent reasonably possible. The cooperation includes the Executive making himself available for reasonable periods of time (with due regard for his other commitments) upon reasonable notice to the Executive in any such litigation or investigation and providing testimony before or during such litigation or investigation. The Executive shall be entitled to a per diem amount based on the Executive’s then-prevailing rate of compensation for any cooperation that the Executive provides at the Company’s election. In addition, the Company shall reimburse the Executive for reasonable out-of-pocket expenses incurred in connection with such cooperation. | 24Cooperation
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Neither of the Credit Parties are in material violation of any term of or in default under its certificate or articles of incorporation or bylaws or other governing documents. Neither of the Credit Parties are in material violation of any judgment, decree or order or to the best of their knowledge, any statute, ordinance, rule or regulation applicable to the Credit Parties and material to their business. Schedule 6.19 sets forth all United States federal andstate regulatory licenses and foreign regulatory licenses which to Credit Parties’ knowledge, are necessary to conduct the respective businesses of the Credit Parties, and except as set forth on Schedule 6.19, all of such United State federal and state regulatory licenses and foreign regulatory licenses are valid and in effect and none of the Credit Parties have received any notice of proceedings relating to the revocation or modification of any such United State federal and state regulatory licenses and foreign regulatory licenses. | 19Compliance With Laws
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THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 9.14 AND SECTION 9.17 OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT MUTATIS MUTANDIS AND SHALL APPLY HERETO. | 47Governing Laws
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Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. Mailed notices to Employee shall be addressed to Employee at the home address that Employee most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary. | 65Notices
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This Agreement shall be governed by and construed (both as to validity and performance) and enforced in accordance with the internal laws of the State of Florida applicable to agreements made and to be performed wholly within such jurisdiction, without regard to the principles of conflicts of law or where the parties are located at the time a dispute arises. | 47Governing Laws
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Company agrees to continue Employee’s medical benefits through October 31, 2016. | 12Benefits
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This Agreement will be governed and construed in accordance with the substantive Laws of the State of New York, except for any Laws of that state that would require the application of the substantive Laws of a different jurisdiction. | 47Governing Laws
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Subject to the next sentence of this Section 9 , the obligations and liabilities of Indemnitor under this Agreement shall survive the payment in full of the Indebtedness. Notwithstanding the provisions of this Agreement to the contrary, if, (a) at any time after the fourth (4 th ) anniversary of repayment in full of the Indebtedness, whether at maturity, as a result of acceleration, in connection with prepayment or otherwise, (b) with respect to any Property that is released from the lien of the applicable Mortgage in accordance with the terms of the Loan Agreement, at any time after the fourth (4 th ) anniversary of the effective date of the release of such Property, or (c) in the event Sponsor is replaced in accordance with the terms of the Loan Agreement, upon the delivery to Indemnitee of a replacement environmental indemnity substantially in the form hereof and otherwise reasonably acceptable to Indemnitee by such Person acceptable to Indemnitee in its reasonable discretion, at any time after the fourth (4 th ) anniversary of the effective date of such replacement environmental indemnity, Indemnitee is provided with an updated Environmental Report of the related Property indicating to Indemnitee’s reasonable satisfaction that there are no Hazardous Substances located on, in, above or under such Property in violation of any applicable Environmental Laws or constituting a recognized environmental condition (except for Hazardous Substances to the extent specifically identified in the executive summary or conclusions section of the Environmental Report delivered to Lender on the Closing Date), then the obligations and liabilities of Indemnitor under this Agreement shall cease and terminate with respect to such Property. In addition and notwithstanding anything to the contrary contained in this Agreement, Indemnitor shall have no liability under this Agreement for (i) any act, event or condition first arising on or after (and not prior to) the earliest to occur of the date: (a) of the transfer of title to one hundred percent (100%) of the Properties to Lender (or any of its affiliates or designees or a purchaser at foreclosure) pursuant to a foreclosure, deed in lieu of foreclosure, exercise of power of sale or otherwise of Lender’s lien under the Loan Documents or (b) of the transfer of title to one hundred percent (100%) of the Mezzanine Loan Collateral to Mezzanine Lender (or any of its affiliates or designees or a purchaser at foreclosure) pursuant to a foreclosure, assignment in lieu of foreclosure, exercise of power of sale or otherwise of Mezzanine Lender’s lien under the Mezzanine Loan Documents, and (ii) where such act, event or condition referred to in clause (i) was not caused by actions or omissions of Indemnitor, Master Tenant, or any of their respective Affiliates. | 85Survival
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This Amendment, together with the Employment Agreement (to the extent not amended hereby), represents the entire agreement of the parties with respect to the subject matter hereof and shall supersede any and all previous contracts, arrangements or understandings between the parties. | 38Entire Agreements
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The validity, interpretation and performance of this Agreement shall be subject to and construed under the laws of the State of Missouri, without regard to principles of conflicts of law. | 56Jurisdictions
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Each of Borrower and Borrower Representative has been duly organized and is validly existing and in good standing under the laws of the state of its formation, with requisite power and authority, and all rights, licenses, permits and authorizations, governmental or otherwise, necessary to own its properties and to transact the business in which it is now engaged. Each of Borrower and Borrower Representative is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, business and operations. Borrower is a Special Purpose Entity. | 66Organizations
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To the extent any provision of this Agreement shall be invalid or enforceable with respect to Employee, it shall be considered deleted herefrom with respect to Employee and the remainder of such provision and this Agreement shall be unaffected and shall continue in full force and effect. In furtherance to and not in limitation of the foregoing, should the duration or geographical extent of, or business activities covered by, any provision of this Agreement be in excess of that which is valid and enforceable under applicable law with respect to Employee, then such provision shall be construed to cover only that duration, extent or activities which are validly and enforceably covered with respect to Employee. Employee acknowledges the uncertainty of the law in this respect and expressly stipulates that this Agreement be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its expressed terms) possible under applicable laws. | 79Severability
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This Agreement sets forth the entire agreement between the parties regarding the matters addressed herein, and fully supersedes any prior agreements or understandings regarding such matters between the parties. | 38Entire Agreements
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The Purchaser represents and warrants to the Company that the statements contained in this Section 4 are true and correct as of the date of this Agreement and as of the Initial Closing and the Subsequent Closing. | 76Representations
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Neither the execution and delivery of this Agreement, the acquisition and performance of the servicing responsibilities by Servicer, the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement, will conflict with or result in a breach of any of the terms, conditions or provisions of Servicer’s charter or by-laws or any legal restriction or any agreement or instrument to which Servicer is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, unless such conflict or breach could not be expected to have a Material Adverse Effect with respect to Servicer, materially impair or interfere with the ability of Servicer to service the Loans, or materially impair the aggregate value, collectability or performance of the Loans. | 61No Conflicts
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For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, if delivered by overnight courier service , or if mailed by registered mail, return receipt requested, postage prepaid, addressed to the respective addresses or sent via facsimile to the respective facsimile numbers, as the case may be, as set forth below, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt; provided, however, that (i) notices sent by personal delivery or overnight courier shall be deemed given when delivered; (ii) notices sent by facsimile transmission shall be deemed given upon the sender ’ s receipt of confirmation of complete transmission; and (iii) notices sent by registered mail shall be deemed given two (2) days after the date of deposit in the mail . | 65Notices
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The Executive shall be entitled to receive prompt reimbursement for all 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. In addition to the foregoing, the Executive shall be entitled to receive prompt reimbursement for (i) all reasonable and documented expenses related to his relocation to the Canonsburg, PA area in connection with the commencement of his services hereunder in accordance with the Company’s standard executive relocation policy, a copy of which has been provided to the Executive (the “Relocation Policy”), except that the Company agrees to reimburse the Executive for the real estate agent fees paid in connection with the sale of his primary residence, which fee reimbursement shall not count towards the dollar maximum set forth in the Relocation Policy, and the Compensation Committee of the Board must approve any further exceptions (if any) to the Relocation Policy; and (ii) up to $52,500 as reimbursement of legal expenses related to the negotiation of this Agreement and any agreements referenced herein promptly following the execution of this Agreement. | 41Expenses
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The Company shall withhold the amount of any federal, state, local or other tax, charge or assessment attributable to the grant of any Award or lapse of restrictions under any Award as it may deem necessary or appropriate, in its sole discretion. | 99Withholdings
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All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein; provided that, for the sake of clarity, all payments made in respect of the Singapore Term Loans shall be made through the Singapore Agent at its Administrative Agent’s Office. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. | 46General
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If any term of provision of this Agreement is determined to be illegal, unenforceable or invalid in whole or in part for any reason, such illegal, unenforceable or invalid provisions or party thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section 10.9 , then such stricken provision shall be replaced, to extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible. | 79Severability
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Except as provided in this Agreement, shares of Restricted Stock are not transferable and are subject to a substantial risk of forfeiture until vested as set forth in Section 2(b). The Grantee’s interest in the Restricted Stock shall become transferable and nonforfeitable as of the vesting dates provided in Section 2(b) (each, a “Vesting Date”), provided the Grantee is an employee of the Company or an affiliate of the Company on the Vesting Date and has been an employee throughout the period beginning on the Effective Date and ending on the applicable Vesting Date. | 46General
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The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings (including without limitation that certain Securities Purchase Agreement between the Company and the Purchasers dated as of May 11 , 2016) , oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At or after the applicable Closing, and without further consideration, the Company will execute and deliver to the Purchasers such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents. | 38Entire Agreements
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Except for transactions between or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in (a) any other transactions with, any of its Affiliates, except that the Borrower or any Subsidiary may engage in any of the foregoing transactions (i) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, or (ii) that have been either (x) approved by a majority of the independent members of the board of directors of the Borrower having no, direct or indirect, personal stake or economic interest in such transactions and certified by a Financial Officer or executive officer of the Borrower as being on terms and conditions not less favorable to the Borrower or its Subsidiaries than could be obtained on an arm’s-length basis from a Person who is not such an Affiliate or (y) have been determined by a nationally recognized independent appraisal or investment banking firm to be fair, from a financial standpoint, to the Borrower and its Subsidiaries and are on terms and conditions not less favorable to the Borrower and its Subsidiaries than could be obtained on an arm’s-length basis from a Person who is not such an Affiliate; and (b), without duplication, (i) any Restricted Payment permitted by Section 6.06; (ii) any employment agreements entered into by the Borrower or any of its Subsidiaries in the ordinary course of business and any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans or similar employee benefit plans approved in good faith by the board of directors of the Borrower or of a Subsidiary, as appropriate; provided , that any such issuance, payment, award or grant constituting a Restricted Payment is otherwise permitted by Section 6.06; (iii) the grant of stock options or similar rights to employees and directors of the Borrower pursuant to plans approved by the board of directors of the Borrower; (iv) loans or advances to employees in the ordinary course of business which are approved by a majority of the board of directors of the Borrower in good faith, to the extent permitted by Section 6.04(e); (v) the payment of customary compensation and reasonable fees to, and indemnity provided on behalf of, directors, officers, consultants and employees of Holdings, of the Borrower and of the Subsidiaries; provided , that any such payment constituting a Restricted Payment is otherwise permitted by Section 6.06; (vi) any purchase by Holdings of Equity Interests of the Borrower or contributions by Holdings to the equity capital of the Borrower; provided that any Equity Interests of the Borrower purchased by Holdings shall be pledged to the Collateral Agent pursuant to the Collateral Agreement; (vii) transactions with wholly owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business in a manner consistent with past practice and (viii) the entry into and performance of any tax sharing agreement permitted by Section 6.06. | 91Transactions With Affiliates
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This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or by email as a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Joinder. | 26Counterparts
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