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This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by electronic or facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. | 26Counterparts
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This Agreement, together with the Exhibits, Schedules, Service Orders and the other agreements executed on the date hereof in connection with the transactions contemplated by the Contribution Agreement dated as of August 31, 2016 by and among the Partnership and PBF Energy Company LLC, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith. | 52Integration
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This Agreement, together with the Proprietary Inventions and Assignment Agreement and the standard forms of equity award grants that describe Executive's outstanding equity awards, represent the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and is signed by duly authorized representatives of the parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise or understanding that is not in this Agreement. | 52Integration
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There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, overtly threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of the Restricted Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. | 58Litigations
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Any waiver by a party or any breach of this Agreement by another party shall not be construed as a continuing waiver or as consent to any subsequent breach by the other party. Except as otherwise expressly set forth herein, no failure on the part of any party hereto to exercise and no delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. | 97Waivers
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This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute but one and the same agreement. It is agreed by the parties hereto that facsimile or e-mail signature pages signed by the Parties shall be binding to the same extent as original signature pages. | 26Counterparts
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The Seller has filed or caused to be filed all material tax returns (federal, state and local) required to be filed and paid all amounts of taxes shown thereon to be due, including interest and penalties, except for such taxes as are being contested in good faith and by proper proceedings and with respect to which appropriate reserves are being maintained by the Seller in accordance with GAAP as reasonably determined by the Seller. | 87Taxes
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This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original and it shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart. Delivery of an executed counterpart of this Amendment by telecopy or electronic mail by any party hereto shall be effective as such party’s original executed counterpart. | 26Counterparts
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The indemnity and payment obligations set forth in this Article IX and Section 12.02(a)(iii) with respect to Taxes (and the representations contained in Section 4.14 ) shall survive until the date that is thirty (30) days following the expiration of the applicable statute of limitations. | 85Survival
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This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto in respect of the subject matter contained herein; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and cancelled. Except for the provisions of Section 4.1 hereof, nothing in this Agreement shall modify, amend or alter, in any manner, any stock option, stock restriction or other equity incentive arrangement or any non-disclosure, non-competition, non-solicitation, assignment of invention, or any similar agreement, to which the Executive is a party. Executive shall not be entitled to any severance or similar benefits in excess of the benefits the Executive is owed under this Agreement. To the extent that, at the time of the Executive’s termination of employment, any laws or regulations provide for the payment of a severance or similar benefit that is in addition to, or in excess of, the amounts Executive is owed with respect to any similar element of compensation under this Agreement, the Executive hereby waives any rights or benefits to which the Executive may be entitled pursuant to any such laws or regulations; provided that, to the extent the foregoing waiver is ineffective or unenforceable, the benefits to which the Executive is owed under this Agreement shall be reduced to an amount such that the sum of such reduced amount and the amount the Executive actually receives pursuant to any such laws or regulations is equal to the amount that would have been payable under this Agreement but for the operation of this proviso. | 38Entire Agreements
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The Board may delegate administration of this Plan to a Committee or Committees of one or more members of the Board, and the term “Committee” shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of this Plan, the powers theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board or the Administrator shall thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of this Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of this Plan. The members of the Committee shall be appointed by and serve at the pleasure of the Board. From time to time, the Board may increase or decrease the size of the Committee, add additional members to, remove members (with or without cause) from, appoint new members in substitution therefor, and fill vacancies, however caused, in the Committee. The Committee shall act pursuant to a vote of the majority of its members or, in the case that the Committee is comprised of only two members, the unanimous consent of its members, whether present or not, or by the written consent of the majority of its members (or of all of its members if there are only two members) and minutes shall be kept of all of its meetings and copies thereof shall be provided to the Board. Subject to the limitations prescribed by this Plan and the Board, the Committee may establish and follow such rules and regulations for the conduct of its business as it may determine to be advisable. | 46General
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The proceeds of the Loans will be used for general corporate purposes of the Borrower and its Subsidiaries (including acquisitions permitted hereunder, to finance the HealthFusion Acquisition, to refinance certain Indebtedness of HealthFusion and its Subsidiaries as contemplated by Section 4.01(i) and to pay fees, commissions, transaction costs and expenses incurred in connection with the Transactions). 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 ensure 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, to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto. | 92Use Of Proceeds
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The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Delaware Court of Chancery, this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives any requirement under any law to post security as a prerequisite to obtaining equitable relief. | 37Enforcements
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The Licensor assumes no liability to the Licensee or third parties with respect to the performance characteristics of the goods sold by the Licensee under the Licensed Works, and the Licensee shall indemnify the Licensor and hold Licensor harmless against losses incurred through claims of third persons against the Licensor involving the manufacture, distribution or sale of the Licensed Goods. Licensee agrees to obtain, at its own expenses, product liability insurance providing adequate protection for Licensor and Licensee against any such claims or suits in amounts no less than $1,000,000 U.S. Dollars, and, within sixty (60) days prior the sale of the License Goods, Licensee will submit to Licensor a fully paid policy or certificate of insurance naming Licensor as insured parties, requiring that the insurer shall not terminate or materially modify such without written notice to Licensor at least thirty (30 ) days in advance thereof. | 50Indemnity
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The Committee may unilaterally amend or alter the terms of the PSUs, including this Award Agreement, retroactively or otherwise, in any manner consistent with the provisions of Section 15 of the Plan; provided, however, that no such alteration or amendment may, without the consent of the Participant, materially impair the previously accrued rights of the Participant with respect to the PSUs. Notwithstanding any provision herein to the contrary, the Committee shall have broad authority to amend this Award Agreement to take into account changes in applicable tax laws, accounting rules, stock exchange rules and other applicable state and federal laws, including without limitation, any amendments made pursuant to Section 409A of the Code. | 2Amendments
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The Shares shall become fully vested on the first anniversary of the Grant Date, subject to the Recipient continuing Service as a member of the Board. If a Director’s Service as a member of the Board terminates other than for death or Disability (“ Termination ”), all of the Shares that have not vested as of the date of Termination (any such shares, “Unvested Shares”) will be forfeited. The foregoing notwithstanding, in the event of the Recipient’s death or Disability or a Change in Control of the Company during Recipient’s Service as a member of the Board, all Unvested Shares shall become immediately vested and no longer subject to restrictions on Transfer hereunder. | 95Vesting
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Any dispute, controversy or claim arising out of or relating to this Agreement, the breach hereof or the coverage or enforceability of this arbitration provision shall be settled by arbitration in Dallas, Texas (or such other location as the Company and Executive may mutually agree), conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as such rules are in effect in Dallas/Fort Worth, Texas on the date of delivery of demand for arbitration. The arbitration of any such issue, including the determination of the amount of any damages suffered by either party hereto by reason of the acts or omissions of the other, shall be to the exclusion of any court of law. Notwithstanding the foregoing, either party hereto may seek any equitable remedy in a court to enforce the provisions of this Agreement, including, but not limited to, an action for injunctive relief or attachment, without waiving the right to arbitration. | 46General
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This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which shall together constitute one and the same instrument. | 26Counterparts
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This Amendment may be executed in counterparts, each of which shall be deemed an original. Facsimile copies or PDF copies sent by email of this Amendment and any signatures thereon shall be considered for all purposes as originals. | 26Counterparts
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The Borrower agrees to pay to the Lender a commitment fee (the “ Revolving Commitment Fee ”) at a per annum rate equal to 0.125% on the average daily Available Revolving Commitment from the date of this Agreement to and including the Facility Termination Date, payable in arrears on the last day of each quarter hereafter and on the Facility Termination Date. | 42Fees
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This Agreement constitutes the entire agreement between the Company and the Optionee and supersedes all prior agreements and understandings, oral or written, between the Company and the Optionee with respect to the subject matter of this Agreement. | 38Entire Agreements
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In consideration of this Agreement, Bailey will fully cooperate with Cyanotech and its counsel as it relates, in any way, to any foreign or domestic dispute (including, but not limited to, litigation, arbitration, and federal, state or local administrative inquiry) arising out of or related to any services he performed for Cyanotech and which occurred during his employment with, or time providing other services to, Cyanotech. Full cooperation shall include, but not be limited to, review of documents, attendance at meetings, trial or administrative proceedings, depositions, interviews, or production of documents to Cyanotech without the need of the subpoena process. During the period Bailey is receiving Severance Payments or Separation Benefits, such cooperation will be provided by Bailey without further compensation, other than reimbursement for reasonable out of pocket business expenses such as transportation, lodging, parking and meals or as specifically agreed in advance and in writing. After such period, such cooperation will be provided by Bailey; provided, the Company pays him a per diem determined using his base salary as of his Separation Date, reimburses Bailey for reasonable out of pocket business expenses such as transportation, lodging, parking and meals, and schedules his cooperation, to the extent reasonably practicable, so as not to unreasonably interfere with Bailey’s business or personal affairs. In addition, as a condition to Cyanotech executing this Agreement and providing the Separation Benefits hereunder, Bailey agrees to cooperate in all matters relating to the transition of his employment (including with respect to internal and external communication plans) and other matters reasonably requested by Cyanotech after the Separation Date, without further compensation. | 24Cooperation
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Sublessor does hereby sell and transfer to Sublessee, on an “AS-IS” “WHERE IS” “WITH ALL FAULTS AND DEFECTS” basis, and without recourse or warranty, and Sublessee does hereby purchase and accept, all of Sublessee’s right, title and interest in and to the Transferred Personal Property. | 77Sales
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Executive agrees not to engage in any conduct, or make any statement in any form, that may disparage, defame, or otherwise diminish the reputation of Affinity, the Board Shareholders, and their respective affiliates, funds, products, services, owners, members, principals, investors, officers, directors, employees, or their respective families. | 64Non-Disparagement
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Each Holder and each of its assignees acknowledge and agree that the information of the Corporate Taxpayer is confidential and agrees that, until the date that is three (3) years after the termination of this Agreement in respect of such Holder (or assignee), such Holder (or assignee) shall keep and retain in the strictest confidence and not disclose to any Person any confidential matters acquired pursuant to this Agreement of the Corporate Taxpayer and its Affiliates and successors, learned by the Holder heretofore or hereafter, except in the course of performing any duties as necessary for the Corporate Taxpayer and its Affiliates, as required by Law or legal process or to enforce the terms of this Agreement. This Section 7.12 shall not apply to (a) any information that has been made publicly available by the Corporate Taxpayer or any of its Affiliates, becomes public knowledge (except as a result of an act of the Holder in violation of this Agreement) or is generally known to the business community, (b) any information independently determined by a Holder or provided to a Holder by a third party on a non-confidential basis and (c) the disclosure of information to the extent necessary for the Holder to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such Tax Returns. Notwithstanding anything to the contrary herein or in any other agreement, the Holders and each of their assignees (and each employee, representative or other agent of the Holders or their assignees, as applicable) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure and any related tax strategies of or relating to the Corporate Taxpayer and its Affiliates, the Holder or its assignee, and any of their transactions or agreements, and all materials of any kind (including opinions or other tax analyses) that are provided to the Holder or its assignee relating to such tax treatment and tax structure and any related tax strategies. | 20Confidentiality
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In the event of any conflict between this Agreement and the Plan, this Agreement shall control. In the event of any ambiguity in this Agreement, or any matters as to which this Agreement is silent, the Plan shall govern, including, without limitation, the provisions thereof pursuant to which the Compensation and Benefits Committee has the power, among others, to (i) interpret the Plan, (ii) amend and repeal administrative rules, guidelines and practices relating to the Plan and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan. | 55Interpretations
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Landlord and Tenant each hereby represents and warrants that it has not dealt with any real estate b r oker or agent in connection with the procurement of this Amendment other than Transwestern RBJ, whose commissions , if any, shall be paid by Landlo r d pursuant to separate agreement. Each party covenants and agrees to pay, hold harmless and indemnify the other from and against any and all cost, expense (including reasonable attorneys’ fees) or liability for any compensation, commission or charges to any broker or agent (other than the foregoing named broker) resulting from the falsity of such representation and warranty. | 15Brokers
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Each Party acknowledges that because money damages are not and shall not be available against the UCC and would be an insufficient remedy for any breach of this Agreement by any Party, each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy of any such breach, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder, without the necessity of proving the inadequacy of money damages as an exclusive remedy. Each of the Parties hereby waives (a) any defense that a remedy at law is adequate and (b) any requirement to post bond or other security in connection with actions instituted for injunctive relief, specific performance, or other equitable remedies. Nothing herein waives entitlements to money damages available hereunder to the extent they can be enforced. | 81Specific Performance
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In case at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, any Ancillary Agreement, or any of the transactions contemplated hereby or thereby, each of the parties hereto will take such further action (including the execution and delivery of further instruments and documents) as any other party reasonably may request, all at the sole cost and expense of the requesting party (unless the requesting party is entitled to indemnification hereunder). From and after the Closing, the Company shall make available to Buyer all documents, books, records (including Tax records), agreements and financial data of any sort relating to the Purchased Assets that are Excluded Assets. | 46General
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As consideration for the assignment and sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof in federal funds the amount heretofore agreed between them. It is understood that Facility Fees accrued to the Assignment Effective Date in respect of the Assigned Amount are for the account of the Assignor and such fees accruing from and including the Assignment Effective Date are for the account of the Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under the Credit Agreement which is for the account of the other party hereto, it shall receive the same for the account of such other party to the extent of such other party’s interest therein and shall promptly pay the same to such other party. | 68Payments
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Schedule 7.15 sets forth as of the Third Amendment Effective Date a list of all Subsidiaries (excluding Subsidiaries with no assets and no operations) and the number and percentage of the shares of each class of capital stock owned beneficially or of record by the Company or any Subsidiary therein, and the jurisdiction of formation of each such Subsidiary, and designates which Subsidiaries are Material Subsidiaries. | 83Subsidiaries
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If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, the Partnership or the Employer (as applicable) shall provide the Executive with the Accrued Obligations and the timely payment or delivery of the Other Benefits, and shall have no other severance obligations under this Agreement. The Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days following the Date of Termination. With respect to the provision of the Other Benefits, the term “Other Benefits” as utilized in this Section 5(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of those generally provided by the Partnership, the Employer and the Affiliated Companies to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter generally with respect to other peer executives of the Partnership, the Employer and the Affiliated Companies and their families. | 30Disability
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Payment due the 20th of the month following delivery month. Payment shall be made by electronic funds transfer in United States dollars. | 68Payments
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Except as permitted by an order of the Bankruptcy Court, none of the Borrower Parties, their respective Subsidiaries or any of their respective properties is in violation of, nor will the continued operation of their properties as currently conducted violate, any Legal Requirement (including any applicable Environmental Law) or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority in neither case that would reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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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 any of the Documents (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 any of the Documents), 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 any 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 attorneys' fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding. | 47Governing Laws
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The Borrower and its Subsidiaries have conducted their businesses in material compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. | 3Anti-Corruption Laws
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The provisions of this Agreement shall survive the termination of this Agreement and/or the termination of the Employee’s employment to the extent necessary to effectuate the terms contained herein. Notwithstanding the foregoing, these provisions shall terminate and be of no further force or effect beginning twelve (12) months after the closing of a Sale Event. | 85Survival
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The paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or give full notice thereof. Unless otherwise specified, all Section references in this Agreement are to the applicable Section of this Agreement. | 48Headings
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The Parties agree to promptly sign all documents reasonably requested to give effect to the provisions of this Agreement. In addition, Propco agrees to, at Owner’s sole cost and expense, reasonably cooperate with all applicable Gaming Authorities in connection with the administration of their regulatory jurisdiction over the Owner and the Call Right transaction described herein, including the provision of such documents and other information as may be requested by such Gaming Authorities. | 45Further Assurances
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In the event of a breach or threatened breach by the Executive of Sections 6 - 9 of this Agreement, the Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief. | 75Remedies
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If any court of competent jurisdiction holds that any term or provision of this Agreement is invalid or unenforceable, the remaining terms and provisions will continue in full force and effect, and this Agreement shall be deemed to be amended automatically to exclude the offending provision. | 79Severability
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Tenant hereby consents to the exclusive jurisdiction of the state courts located in the county where the Building is located and to the federal courts located in the Eastern District of Pennsylvania. In connection with any litigation arising out of this Lease, the prevailing party, Tenant or Landlord, shall be entitled to recover all costs incurred, including reasonable attorneys’ fees. | 21Consent To Jurisdiction
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This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, United States of America. | 47Governing Laws
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Subject to the terms herein, either party may terminate the Executive’s employment at any time; provided that the Executive will be required to provide the Company at least ninety (90) days’ advance written notice of the Executive’s voluntary resignation. The Termination Date shall be the date stated in the notice of termination. Upon termination of the Executive’s employment, the Company shall pay the Executive (i) any unpaid Base Salary accrued through the Termination Date, (ii) any accrued and unpaid vacation pay to which the Executive is entitled as a matter of law or Company policy , and (iii) any unreimbursed expenses properly incurred prior to the Termination Date (the “ Accrued Obligations ”). The Executive’s termination under this Agreement shall also constitute the Executive’s resignation as an officer or director of any affiliate or subsidiary of the Company, as applicable. | 88Terminations
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Purchaser shall have no right whatsoever to enter into any license, assignment, sublease, pledge or other occupancy agreement with respect to the Sub-Leased Premises or to permit any other person or entity other than Purchaser to occupy the Sub-Leased Premises. | 7Assignments
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This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Illinois without regard to principles of conflict of laws. | 47Governing Laws
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The Parties agree to take such actions and execute and deliver such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby and thereby. | 45Further Assurances
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Employee agrees to maintain in complete confidence the existence of this Agreement, the contents and terms of this Agreement, and the consideration for this Agreement (hereinafter collectively referred to as “Separation Information”). Except as required by law, Employee may disclose Separation Information only to his/her immediate family members, the Court in any proceedings to enforce the terms of this Agreement, Employee’s counsel, and Employee’s accountant and any professional tax advisor to the extent that they need to know the Separation Information in order to provide advice on tax treatment or to prepare tax returns, and must prevent disclosure of any Separation Information to all other third parties. Employee agrees that he/she will not publicize, directly or indirectly, any Separation Information. | 20Confidentiality
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Each of the Guarantors hereby acknowledges and reaffirms in all respects all of its respective obligations under the Guaranties giving effect to the foregoing provisions of this Agreement. | 74Releases
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This Guaranty may not be amended except in writing signed by the Requisite Lenders (or all of the Lenders if required under the terms of the Term Loan Agreement), the Administrative Agent and each Guarantor. | 2Amendments
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Should any clause, sentence, paragraph, or Section of this Agreement be judicially declared to be invalid, unenforceable, or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties hereto agree that the part or parts of this Agreement so held to be invalid, unenforceable, or void will be deemed to have been stricken herefrom and the remainder will have the same force and effectiveness as if such part or parts had never been included herein. | 79Severability
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The Company will pay Executive an annual base salary (“ Base Salary ”) in the amount of $13,000.00 per month ($156,000 per year). The Base Salary will be paid in accordance with the Company’s payroll practices in effect from time-to-time. Executive’s Base Salary will be reviewed at least annually in accordance with the Company’s executive compensation review policies and practices and may be increased in accordance with such review , looking to the results of such review and the Company’s financial progress, among other things, as guides in making any adjustments. All payments to Executive under this Agreement will be subject to withholding as required by applicable law. | 11Base Salary
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This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective personal representatives, heirs, beneficiaries, successors and permitted assigns. | 13Binding Effects
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TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HERETO WAIVES, AND COVENANTS THAT SUCH PARTY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH THE DEALINGS OF ANY PARTY HERETO OR THE COMPANY IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. The Company or any party hereto may file an original counterpart or a copy of this Section 3.8 with any court as written evidence of the consent of the parties hereto to the waiver of their rights to trial by jury. | 96Waiver Of Jury Trials
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The parties agree that this Agreement is reasonable and necessary for the protection of the business and goodwill of Crawford and that any breach of this Agreement by Employee will cause Crawford substantial and irreparable harm entitling Crawford to injunctive relief and other equitable and legal remedies. Moreover, to the extent Employee breaches this Agreement, the time periods set forth herein are continued for the period of Employee’s breach of the Agreement. The prevailing party shall be entitled to recover its costs and attorney’s fees in any proceeding brought under this Agreement. The existence of any claim or cause of action by Employee against the Company, including any dispute relating to the termination of this Agreement, shall not constitute a defense to enforcement of said covenants by injunction. | 75Remedies
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EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.07(e) . | 96Waiver Of Jury Trials
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The Employee hereby grants to the Employer the right to use the Employee’s name and likeness, without additional consideration, on, in and in connection with technical, marketing and/or disclosure materials published by or for the Employer for the duration of Employee’s employment with Employer and for a reasonable period of time following the Date of Termination. | 71Publicity
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Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b) )) or (ii) the determination by the Collateral Agent that there exists excess Cash Collateral; provided , however , (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.16 may be otherwise applied in accordance with Section 8.03 ) and (y) the Person providing Cash Collateral, the Administrative Agent and the applicable L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. | 74Releases
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Notwithstanding any provision of the Transfer and Administration Agreement to the contrary, each of the Managing Agents and the Investors hereby consents to (x) the non-pro rata payments in respect of the Investor Group Net Investment of the Investor Group for which PNC acts as Managing Agent and (y) the non pro rata increase of the Net Investment of the Investor Group for which Wells Fargo acts as Managing Agent. | 22Consents
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c ) without regard to the existence of any participation. | 67Participations
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This Second Amendment may be executed in one or more counterparts and on facsimile counterparts or other electronic transmission, as permitted under the Original Amended Credit Agreement, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same agreement. | 26Counterparts
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Except as disclosed in Schedule 5.10 , there is no material claim, action, suit, investigation or proceeding (or any basis therefor) pending against, brought by, or threatened against or affecting, Ecosphere or any of its properties or the transactions contemplated hereby and there is no claim, action, suit, investigation or proceeding (or any basis therefor) pending against, brought by, or threatened against or affecting, the Company or any of its properties or the transactions contemplated hereby, before any court or arbitrator or any governmental body, agency, official or authority. Except as disclosed is Schedule 5.10, Ecosphere is not a party to or otherwise involved in or intends to initiate any material claims, actions, suits, investigations or proceedings arising out of or otherwise relating to the operations, financial condition or equity interests of Ecosphere or the Company and the Company is not a party to or otherwise involved in or intends to initiate any claims, actions, suits, investigations or proceedings arising out of or otherwise relating to the operations, financial condition or equity interests of Ecosphere or the Company. | 58Litigations
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(a) The Company will keep, and will cause each Subsidiary to keep, all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted. | 51Insurances
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This Agreement may be amended or modified, and rights under it may be waived, only by a writing executed and signed by the parties hereto. | 2Amendments
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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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, OTHER AGENT (INCLUDING ANY 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. | 96Waiver Of Jury Trials
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This Agreement is the final and entire agreement between the parties relating to the subject matter and supersedes any and all prior or contemporaneous discussions, statements, representations, warranties, correspondence, conditions, negotiations, understandings, promises and agreements, oral and written, with respect to such subject matter. | 38Entire Agreements
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Neither party may assign or subcontract any of its or her rights or obligations under this Agreement without the written consent of the other. Any assignment not in compliance with this provision shall be void. | 7Assignments
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This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the State of Delaware. The Participant submits to the in personam jurisdiction of the federal and state courts in the district or county, respectively, in which Schaumburg, Illinois is situate and agrees that such courts shall be the sole and exclusive forum for the resolution of any disputes regarding the Plan or this Agreement. | 47Governing Laws
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Other than as set forth on Schedule 6 attached hereto, neither Borrower nor any Affiliate (a) has or holds any tradenames, trademarks, servicemarks, logos, copyrights, patents or other intellectual property (collectively, “ Intellectual Property ”) with respect to the Property or the use or operations thereof or (b) is the registered holder of any website with respect to the Property (other than Tenant or Franchisor websites). | 53Intellectual Property
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This Amendment, the Existing Credit Agreement as amended by this Amendment and the other Credit Documents embody the entire agreement between the parties and supersede all prior agreements and understandings, if any, relating to the subject matter hereof. These Credit Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. Except as expressly modified and amended in this Amendment, all the terms, provisions and conditions of the Credit Documents shall remain unchanged and shall continue in full force and effect. | 13Binding Effects
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NantHealth shall keep accurate records (together with supporting documentation) of Services sold pursuant to this Agreement, appropriate to determine the amount of fees and other monies due to NantOmics hereunder. Such records shall be retained for at least two (2) years following the end of the Term. Upon at least thirty (30) days prior written notice to NantHealth, NantOmics will be entitled to retain, at its own expense, an independent certified public accounting firm reasonably acceptable to Nant Health (the “ Auditor ”), solely for the purpose of auditing those records (which shall not include access or examination of any systems) that are reasonably necessary to determine NantHealth’s compliance with its payment obligations under this Agreement. Prior to any audit, the Auditor will be required to sign a confidentiality and/or non-disclosure agreement reasonably acceptable to NantHealth, and the results of the audit and all information reviewed during such audit will be deemed the NantHealth’s Confidential Information. Such audit shall be conducted in accordance with generally accepted auditing standards, during NantHealth’s customary business hours, and according to its customary office policies and procedures. NantOmics shall be entitled to one audit per calendar year during the Term and during the two (2) years thereafter. Upon the conclusion of an audit, the period covered during such an audit may not be reexamined in any subsequent audit. If an audit discloses that NantHealth has underpaid NantOmics an amount that is more than five percent (5%) of the amount actually due under this Agreement during any 6 month period, then NantHealth shall pay all reasonable expenses of the Auditor directly incurred by NantOmics Party for such audit in addition to the underpaid amount disclosed through such audit and due under this Agreement. | 73Records
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The representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement and the sale of the Shares. | 85Survival
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Section 10.14(b) , ( c ) and ( d ) and Section 10.15 of the Credit Agreement shall apply to this Amendment, mutatis mutandis . | 59Miscellaneous
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Each Loan Party maintains the insurance and required services and financial assurance as required by law and as required by Section 7.01(h). Schedule 6.01(r) sets forth a list of all insurance maintained by each Loan Party on the Effective Date. | 51Insurances
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All notices, requests, demands and other communications provided in connection with this Royalty Agreement shall be in writing and shall be deemed to have been duly given at the time when hand delivered, delivered by express courier, or sent by facsimile (with receipt confirmed by the sender’s transmitting device) in accordance with the contact information provided below or such other contact information as the parties may have duly provided by notice. | 65Notices
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The parties acknowledge that this Agreement has been the subject of full opportunity for negotiation and amendment and accordingly, any rule of construction that would construe ambiguities against the drafter shall not apply to this Agreement. | 23Construction
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Subject to any obligations the Participant may have under applicable law, the Participant will not make or cause to be made any statements that disparage, are inimical to, or damage the reputation of the Company or any of its affiliates, subsidiaries, agents, officers, directors or employees. In the event such a communication is made to anyone, including but not limited to the media, public interest groups and publishing companies, it will be considered a material breach of the terms of the Plan. Nothing in this section shall limit a Participant’s ability to provide truthful testimony or information in response to a subpoena, court order, or investigation by a government agency. | 64Non-Disparagement
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(a) In the event that any of the Secured Obligations fails to be timely and fully performed in accordance with the terms of the Loan Documents, once the applicable grace period shall have elapsed without the applicable default having been remedied in accordance with the Credit Agreement, the Pledgee, in its capacity as administrative agent for the benefit of the Secured Parties, may enforce the pledge granted hereunder, in accordance with the provisions of the Negotiable Instruments Law, the Commerce Code and applicable law. | 37Enforcements
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The Administrative Agent shall have received a solvency certificate, in form and substance satisfactory to the Administrative Agent, from a Financial Officer of the Company dated the Effective Date. | 80Solvency
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The Plan shall be governed by the laws of the State of Delaware. | 47Governing Laws
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THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. | 47Governing Laws
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This Agreement sets forth the entire understanding and agreement of the Parties hereto, and shall supersede any agreements and understandings (written or oral) between the Parties on or prior to the Effective Date with respect to the transaction described in this Agreement. | 38Entire Agreements
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Set forth in the Insurance Schedules is a complete and accurate summary of the property, casualty, worker’s compensation, errors and omissions, fidelity bonds/crime insurance program of the Loan Parties and the Subsidiaries of the Loan Parties as of the Closing Date (including the names of all insurers, policy numbers, expiration dates, amounts and types of coverage, annual premiums, exclusions, deductibles, self-insured retention, and a description in reasonable detail of any self-insurance program, retrospective rating plan, fronting arrangement or other risk assumption arrangement involving any Loan Party or any Subsidiary of any Loan Party). Each Loan Party and each Subsidiary of the Loan Parties, and their respective properties, are insured with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties or the Subsidiaries of the Loan Parties, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Parties or such Subsidiaries operate. | 51Insurances
|
The section and paragraph headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They do not purport to, and should not be deemed to define, limit, or extend the scope or intent of any section or paragraph. This Agreement has been negotiated by the Parties, and legal or equitable principles that might require the construction of this Agreement or any provision of this Agreement against the party drafting this Agreement will not apply in any construction or interpretation of this Agreement. | 23Construction
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The Grantee must pay the amount of any federal, state, local or foreign income or employment taxes required to be withheld on the compensation income resulting from the award of, or lapse of restrictions on, the PSUs directly to the Corporation in cash upon request; provided, however, that where the restrictions on Disposition set forth in Section 2.1 of this Agreement have lapsed the Grantee may satisfy such obligation in whole or in part by requesting the Corporation in writing to withhold from the Common Stock otherwise deliverable to the Grantee or by delivering to the Corporation shares of its Common Stock having a Fair Market Value on the date the restrictions lapse equal to the amount of the aggregate minimum statutory withholding tax obligation to be so satisfied, in accordance with such rules as the Committee may prescribe. If the Grantee does not make such request, the Corporation will automatically net unless it has previously requested payment in cash. The Corporation may also establish rules, notwithstanding Sections 2.1 and 4.1 hereof, which may differ from those described above in the case of employment taxes if such taxes are deemed to be due before the lapse of restrictions on Disposition. The Corporation’s obligation to issue or credit shares to the Grantee is contingent upon the Grantee’s satisfaction of an amount sufficient to satisfy any federal, state, local or other withholding tax requirements, notwithstanding the lapse of the restrictions thereon. | 86Tax Withholdings
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The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate thereof shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares to the Investor or that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market. | 52Integration
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This Amendment shall become effective on the date of Lender’s, Borrower’s and Parent’s receipt of executed counterparts of this Agreement, each of which shall be originals or facsimiles or “.pdf” or “tiff” files, properly executed by (i) Borrower, (ii) Parent and (iii) Lender. | 34Effectiveness
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The Company shall maintain insurance policies insuring the Collateral against loss or damage from such risks and in such amounts and forms and with such companies as are customarily maintained by businesses of similar type and size to the Company. | 51Insurances
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This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. | 38Entire Agreements
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If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereby shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated. | 79Severability
|
The proceeds of the Loans will be used for (i) funding needs resulting from Exchange Act Rule 15c3-3 timing differences, (ii) funding National Securities Clearing Corporation and other clearing agency margin deposits and (iii) other short-term operational needs. 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. | 92Use Of Proceeds
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Subject to the Financing Orders and Section 6.17 , promptly after any reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Subsidiaries’ (to the extent any such Subsidiary is required to become a Loan Party) properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and First Priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so. Notwithstanding anything to the contrary in this Agreement or in the Security Documents, neither any Loan Party nor any Subsidiary shall have any obligation to (x) perfect Liens in any Foreign IP Rights to the extent the cost of obtaining such perfection exceeds the practical benefit to the Lenders afforded thereby (as reasonably determined by the Required Lenders), (y) grant any Lien on any Excluded Property or (z) cause any Excluded Subsidiary to become or continue as a Guarantor. | 45Further Assurances
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The execution and delivery of this Agreement by each Seller and Member does not, and the performance of this Agreement by each Seller and Member will not, conflict with, violate or result in a breach of or constitute (with or without notice or the passage of time) a default (or give rise to any third-party right of termination, cancellation, material modification or acceleration) under (i) the organizational documents of any Seller or Member that is an entity, if any, (ii) any law, rule, regulation, order, decree or judgment applicable to any Seller or Member or the Subject Securities, or (iii) any contract, indenture, guarantee, lease, mortgage, license or other agreement, instrument, obligation or undertaking of any kind to which any Seller or Member is a party or by which any Seller or Member or any of their properties or assets are bound. | 61No Conflicts
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All issues and questions concerning the construction, validity, interpretation and enforceability of this MOU and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. Notwithstanding anything herein to the contrary, each of the Parties' rights and obligations set forth herein are subject to all requirements under laws of the State of Texas. | 47Governing Laws
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This Agreement shall be governed exclusively by and construed according to the laws of the State of Utah, as applied to contracts between Utah residents entered into and to be performed entirely within Utah. | 47Governing Laws
|
If the Grantee dies before otherwise incurring a Separation from Service, then, provided that the Company has satisfied the Performance Measures as of the Vesting Date, a pro-rata portion of the PRSUs referred to in Section 4(a) above shall become vested and the pro-rata number of such Shares shall be issued to the Grantee on the Settlement Date. The number of Shares that vest shall be determined by multiplying the number of Shares subject to the PRSUs that are actually earned based on achievement of the applicable Performance Measures by a fraction, which shall be the number of complete months from the Grant Date to the date of death, divided by the number of months from the Grant Date to the Vesting Date. | 27Death
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Each Party represents and warrants to the other Party as of the Effective Date as follows: (a) it is a duly organized and validly existing corporation or limited partnership under the laws of its jurisdiction of incorporation or formation; (b) it has full corporate or partnership power and authority and has taken all corporate or partnership action necessary to enter into and perform this Agreement; (c) the execution and delivery of this Agreement and the performance of its obligations hereunder do not violate, conflict with, or constitute a default or require any consent under its charter or similar organization document, its by-laws or partnership agreement, or the terms or provisions of any material agreement or other instrument to which it is a party or by which it is bound, or any order, award, judgment or decree to which it is a party or by which it is bound; and (d) this Agreement is its legal, valid and binding obligation, enforceable against it in accordance with the terms and conditions hereof, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor rights and judicial principles affecting the availability of specific performance and general principles of equity, whether enforceability is considered in a proceeding at law or equity. Each Party covenants to the other Party that it will not enter into any agreement or other instrument that would conflict with its obligations under this Agreement. | 98Warranties
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On the Restatement Effective Date after giving effect to the transactions to occur on the Restatement Effective Date, the Loan Parties, on a consolidated basis, are Solvent. | 80Solvency
|
Each SAR granted under the Plan shall be evidenced by an Award Agreement. Each SAR so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award SARs to Eligible Persons independent of any Option. | 46General
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This Agreement may be executed in any number of counterparts, including facsimile signatures which shall be deemed as original signatures. All executed counterparts shall constitute one agreement, notwithstanding that all signatories are not signatories to the original or the same counterpart. A copy of an executed counterpart signature page signed by a party may be delivered by facsimile or other electronic transmission and, upon such delivery, a print out of the transmitted signature of such party will have the same effect as if a counterpart of this Agreement bearing an original signature of that party had been delivered to the other party. | 26Counterparts
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