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The Board may, as permitted by law, at any time, amend or terminate the Plan, and may amend any Award Agreement, provided that no amendment or termination (except as provided in Section 2.9, Section 3.4 and Section 6.2) may cause the Award to violate Code Section 409A, may cause the repricing of a Stock Option, or, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely impair the rights of any Participant or beneficiary under any Award granted under the Plan prior to the date such amendment is adopted by the Board; provided, however , that, no amendment may: (i) materially increase the benefits accruing to Participants under the Plan; (ii) materially increase the aggregate number of securities which may be issued under the Plan, other than pursuant to Section 3.4; or (iii) materially modify the requirements for participation in the Plan, unless the amendment under (i), (ii) or (iii) above is approved by the Company’s stockholders. | 46General
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Notices delivered in connection with this Guaranty shall be given in accordance with Section 10.04 of the PC Repurchase Agreement. | 65Notices
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As of the Effective Date and throughout the term of this Agreement, each Party shall procure and maintain, at its sole cost and expense, commercial general liability insurance to cover its indemnification obligation under Section 10.6.1 or 10.6.2 above, as applicable in amounts not less than US$ [* * *] per incident and US$ [* * *] annual aggregate. Such insurance shall be procured with carriers having an A.M. Best Rating of A-VII or better. The minimum amounts of insurance coverage required under this Section 10.6.5 shall not be construed to create a limit on Genocea’s and Isconova’s liability with respect to their respective indemnification obligations under Sections 10.6.1 and 10.6.2 above. | 51Insurances
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This Agreement and the rights and obligations of the parties hereunder and under the Revolving Note and any other Loan Documents, shall be construed in accordance with and governed by the laws of the State of Minnesota. Borrower and Guarantor hereby consent to the jurisdiction of the courts of the State of Minnesota for any actions brought hereon or on the Revolving Note. | 47Governing Laws
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Any notice to be given hereunder by either party to the other may be effected by personal delivery, in writing, or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses set forth below, but each party may change his, her or its address by written notice in accordance with this Section 23. Notices shall be deemed communicated as of the actual receipt or refusal of receipt. | 65Notices
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The headings are intended only for convenience in finding the subject matter and do not constitute part of the text of this Agreement and shall not be considered in the interpretation of this Agreement. | 48Headings
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During the Term, each Party shall promptly report in writing to the other Party any known or suspected infringement of any Enumeral IP, or any unauthorized use or misappropriation of any Enumeral Know-How (each, an “Infringement”), of which such Party becomes aware, and shall provide the other Party with all available evidence supporting such knowledge or suspicion. | 65Notices
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The Option Price shall be payable in full upon the exercise of any Option and, at the discretion of the Committee, an Option Certificate can provide for the payment of the Option Price either (a) in cash, or (b) by check, or (c) in Stock which is acceptable to the Committee, or (d) through any cashless exercise procedure which is effected by an unrelated broker through a sale of Stock in the open market and which is acceptable to the Committee, or (e) through any cashless exercise procedure which is acceptable to the Committee, or (f) in any combination of such forms of payment. Any payment made in Stock shall be treated as equal to the Fair Market Value of such Stock on the date the certificate for such Stock (or proper evidence of such certificate) is presented to the Committee or its delegate in such form as acceptable to the Committee. Any method for the payment of the Option Price permitted pursuant to this § 7.4 may be used for the payment of any withholding requirements under § 16.3. Each Option Certificate shall be deemed to include the right to pay the Option Price in accordance with the procedure described in § 7.4(c) or § 7.4(e). | 68Payments
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Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement other than CBRE Capital Markets (“ Broker ”), and Borrower shall be solely responsible for payment of all commissions, finder’s fees or similar amounts due and payable to Broker pursuant to the terms of their separate agreement, all of which commissions, finder’s fees or similar amounts shall be paid to Broker by Borrower on the Execution Date. Borrower shall indemnify, defend and hold Lender and MetLife HCMJV 1, LP, and their respective affiliates, partners and participants, and the officers, directors, agents, employees of each of them, and the successors and assigns of each of them harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and disbursements) in any way relating to or arising from a claim by any Person (including Broker) that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. The provisions of this Section 12.19 shall survive the expiration and termination of this Agreement and the payment of the Secured Indebtedness. Borrower acknowledges that Lender may have been involved in other transactions with Broker, and Borrower agrees that it shall have no rights against Lender or defenses to Borrower’s obligations under the Loan Documents or the Environmental Indemnity due to any such relationship. | 15Brokers
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This Termination Agreement shall be binding upon all the parties to the Licensing Agreement and their respective successors and assigns. This Termination Agreement shall be governed by, and construed and enforced in accordance with, the internal laws in effect in the State of Texas. | 59Miscellaneous
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The Partnership maintains or is entitled to the benefits of insurance from insurers of recognized financial responsibility covering its properties, operations, personnel and businesses against such losses and risks as are reasonably adequate to protect it and its businesses in a reasonable manner and in amounts which are prudent and customary in the businesses in which the Partnership and its Subsidiaries are engaged. All such insurance is outstanding and duly in force on the date hereof, except for such insurance for which the failure to be outstanding and duly in force would not reasonably be expected to have a Material Adverse Effect. Neither the Partnership nor any of its Subsidiaries has any reason to believe 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 have a Material Adverse Effect. | 51Insurances
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Except as set forth on Schedule 11.16 hereto, no Borrower has any Parents, Subsidiaries or other Affiliates or divisions, nor is any Borrower engaged in any joint venture or partnership with any other Person. | 83Subsidiaries
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There is no Proceeding pending , or to the Knowledge of the Companies, threatened or anticipated relating to or affecting (a) any Company or the Business or any asset owned or used by it; or (b) the Transactions. To the Knowledge of the Companies, n o event has occurred or circumstance exists that would reasonably be expected to give rise to or serve as a basis for the commencement of any such Proceeding. There is no outstanding Order to which any Company or any asset owned or used by it is subject. Schedule 4.17 lists all Proceedings pending at any time within the past five years in which each Company has been named as a defendant (whether directly, by counterclaim or as a third-party defendant) and all Proceedings pending at any time within the past five years in which each Company has been a plaintiff. Schedule 4.17 lists all Orders in effect at any time within the past five years to which each Company has been subject or any asset owned or used by each Company is subject. | 58Litigations
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Seller hereby irrevocably submits to the jurisdiction of the state or federal courts located in the State of Ohio, County of Franklin in connection with any suit, action or other proceeding arising out of or relating to this Agreement and the transactions contemplated thereby, and hereby agrees not to assert, by way of motion, as a defense, or otherwise in any such suit, action or proceeding that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof and thereof may not be enforced by such courts. | 56Jurisdictions
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Assignor hereby agrees to indemnify and to defend and hold Agent and the Lenders harmless against and from all liability, loss, damage and expense, including attorneys' fees, which it may or shall incur by reason of this Collateral Assignment, or by reason of any commercially reasonable action taken in good faith by Agent hereunder or with respect to the Assigned Contracts and Permits, and against and from any and all claims and demands whatsoever which may be asserted against Agent or any Lender by reason of any alleged obligation or undertaking on its part to perform or discharge any of the terms, covenants and conditions contained in any of the Assigned Contracts and Permits and except for any liability, loss, damage, or expense arising from the gross negligence or willful misconduct of Agent, Lenders, or the agents of Agent or Lenders. Should Agent or any Lender incur any such liability, loss, damage or expense, the amount thereof (together with interest thereon at the default rate of interest described in the Credit Agreement if such amounts are not paid within five (5) Business Days after demand therefor) shall be payable by Assignor to Agent and the Lenders immediately upon demand, or at the option of Agent, Agent may reimburse itself therefor out of any receipts, rents, income or profits of the Mortgaged Property collected by Agent before the application of such receipts, rents, income or profits to any other Obligations. | 49Indemnifications
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Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative. | 97Waivers
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To the extent a Change in Control occurs (the date of such Change in Control, the “ Change in Control Date ”), within thirty (30) days following any Change in Control Date, the Borrower shall make a written offer to prepay the Loans (the “ Change in Control Offer ”) to the Lenders (with a copy to the Administrative Agent) ( provided that if such offer is delivered prior to the occurrence of a Change in Control, the offer may state that the Change in Control Offer is conditioned on the occurrence of such Change in Control) for an aggregate principal amount of all of the Loans, together with any accrued and unpaid interest, plus a prepayment premium equal to one percent (1%) of the aggregate principal amount to be repaid. Each Lender may accept all or a portion of its pro rata share of the Change in Control Offer by providing written notice (a “ Change in Control Offer Acceptance Notice ”) to the Administrative Agent and the Borrower no later than 5:00 p.m. ten (10) Business Days after the date of such Lender’s receipt of the Change in Control Offer. Each Change in Control Offer Acceptance Notice from a given Lender shall specify the principal amount of the mandatory repayment of Loans to be accepted by such Lender; provided that if such Lender fails to specify the principal amount of the Loans to be accepted, it shall be deemed to have requested a prepayment in full of its Loans. If a Lender fails to deliver a Change in Control Offer Acceptance Notice to the Administrative Agent within the time frame specified above, such failure will be deemed a rejection of the total amount of such mandatory prepayment of the Loans. The Borrower shall make any prepayments no later than ten (10) Business Days after expiration of the time period for acceptance by Lenders of Change in Control Offers (or, if such ten (10) Business Day period expires prior to the date of the Change in Control, on the date of such Change in Control). | 17Change In Control
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This Agreement contains the entire agreement between the parties related to severance and supersedes all prior or contemporaneous oral and written agreements, understandings, commitments, and practices of the parties. | 38Entire Agreements
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Each Obligor agrees that any suit, action or proceeding with respect to this Amendment or any other Loan Document to which it is a party or any judgment entered by any court in respect thereof may be brought initially in the federal or state courts in New York, New York or in the courts of its own corporate domicile and irrevocably submits to the non-exclusive jurisdiction of each such court for the purpose of any such suit, action, proceeding or judgment. This Section 5 is for the benefit of Administrative Agent and the Lenders only and, as a result, neither Administrative Agent nor any Lender shall be prevented from taking proceedings in any other courts with jurisdiction. To the extent allowed by applicable Laws, Administrative Agent and the Lenders may take concurrent proceedings in any number of jurisdictions. | 82Submission To Jurisdiction
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Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon. If during any calendar week Accounts constituting Eligible Accounts in an aggregate face amount of $100,000 or more cease to be Eligible Accounts for any reason other than payment in full, Borrower Agent shall notify Agent of such occurrence promptly (and in any event within one Business Day) after Borrower Agent has knowledge thereof. | 73Records
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Interest on this Bond payable prior to or on the Maturity Date shall be paid by check or draft mailed to the Registered Holder of this Bond at its address as it appears on the registration books of the Trustee (in such capacity, the “Bond Registrar”) or in such other manner as may be mutually acceptable to the Trustee and the Registered Holder of this Bond. Interest on this Bond that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Registered Holder of this Bond as of the applicable Regular Record Date. In order to make payment of defaulted interest, the District shall pay the defaulted interest to the person who is the Registered Holder on a subsequent special record date. The Trustee shall fix the special record date and special interest payment date. At least 10 days before the special record date, the Trustee shall mail to the Registered Holder a notice that states the special record date, the special interest payment date, and the amount of interest to be paid. | 68Payments
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The terms, covenants and conditions hereof shall be binding upon and inure to the benefit of Mortgagee (for the benefit of the Lenders), Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns. | 13Binding Effects
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The Company hereby agrees to employ the Executive and the Executive hereby accepts such employment with the Company, on the terms and subject to the conditions hereinafter set forth. Subject to the terms and conditions contained herein, the Executive shall serve as President and Chief Operating Officer of the Company and shall have such duties as are typically performed by a president and chief operating officer of a corporation of similar size and type as the Company. The Executive shall render his services at the direction of, and shall report solely to, the Chief Executive Officer of the Company. The Executive agrees to use best efforts to promote and further the business, reputation and good name of the Company. The Executive’s primary place of employment shall be in the Williamsburg, Virginia area, or such other location as determined by the Company’s Board of Directors. | 35Employment
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Each Credit Party owns or is validly licensed to use all Intellectual Property that is necessary for the present conduct of its business, free and clear of Liens (other than Permitted Liens), without conflict with the rights of any other Person unless the failure to own or benefit from such valid license could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the best knowledge of each Credit Party, no Credit Party is infringing, misappropriating, diluting, or otherwise violating the Intellectual Property rights of any other Person unless such infringement, misappropriation, dilution or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. | 53Intellectual Property
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The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforcable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable law. | 79Severability
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If any provision of this Agreement is held to be unenforceable, this Agreement shall be considered divisible and such provision shall be deemed inoperative to the extent it is deemed unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however , that if any provision may be made enforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law. | 79Severability
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Neither party shall have termination rights in this Agreement, except that Licensor may terminate Licensee’s rights and/or this Agreement as expressly set forth in Section 4, 5 and Section 9. | 88Terminations
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This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender. | 85Survival
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Except as set forth in Section 3(b) above, all unvested RSUs shall be immediately forfeited upon the Participant’s Termination for any reason. | 44Forfeitures
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Interest only on the unpaid principal balance of this Note shall be due and payable beginning on the first (1 st ) day of March, 2017 and continuing on the first (1 st ) day of each June, September, and December thereafter until this Note has been paid in full. If not sooner paid, the entire principal balance, all accrued and unpaid interest, if any, and all other sums provided herein shall be due and payable in full on [December 1], 2019 (the “ Maturity Date ”). All payments of principal, interest, fees, expenses and other amounts to be paid by the Maker under this Note shall be paid not later than 2:00 p.m. on the date when due in immediately available funds, without setoff, deduction, counterclaim or withholding of any kind, at the address of the Noteholder located at 120 Tredegar Street, Richmond, VA 23219, or at such other address as the Noteholder shall specify in writing. Notwithstanding the foregoing, all or any portion of the outstanding principal balance hereof, together with interest accrued thereon, shall be payable on demand by Noteholder. | 68Payments
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The Borrower will maintain, and cause each Subsidiary to maintain, its corporate existence in good standing under the laws of its jurisdiction of organization and its qualification to transact business in each jurisdiction where failure so to qualify would permanently preclude the Borrower or such Subsidiary from enforcing its rights with respect to any material asset or would expose the Borrower or such Subsidiary to any material liability; provided , however , that nothing herein shall prohibit the merger or liquidation of any Subsidiary allowed under Section 6.1. | 40Existence
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Upon any termination of Executive’s employment for any reason or non-renewal of this Agreement after the Term, Executive shall be entitled to receive the following compensation and benefits: (A) any accrued but unpaid Base Salary (to be paid as provided in Paragraph 3(a)) as of the Date of Termination (as defined below); (B) reimbursement for expenses incurred by Executive prior to the Date of Termination in accordance with Paragraph 4(d) hereof; (C) vested benefits, if any, to which Executive may be entitled under the Company’s employee benefit plans as of the Date of Termination; and (D) any additional amounts or benefits due under law or any applicable plan or agreement of the Company other than this Agreement (the amounts and benefits described in clauses (A) through (D) above, collectively, the “ Accrued Compensation and Benefits ”). Payment of Accrued Compensation and Benefits under this Paragraph 6 shall in all events be paid in accordance with the Company’s payroll procedures, expense reimbursement procedures or plan terms, as applicable, or in accordance with applicable law. Thereafter, the Company shall have no further obligations to Executive with regard to Accrued Compensation and Benefits. This provision does not apply to or control payment of any Incentive Compensation, provided in paragraph 3(b) herein. | 12Benefits
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During the Term, Executive shall be engaged by the Company in the capacity of Executive Vice President, Human Resources of the Company and CNO or in such other senior executive capacity as the Chief Executive Officer of CNO shall specify. Executive shall report to the Chief Executive Officer of CNO or such other senior executive officer as the Chief Executive Officer of CNO may specify regarding the performance of her duties. | 32Duties
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This Agreement contains the entire understanding between the parties hereto and, as of the Effective Date, it shall supersede all prior negotiations, representations, agreements and understandings, whether oral or written, between CHS and Customer with respect to the acquisition of the Grain for use by Customer at the Facility. | 38Entire Agreements
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Holdco has no Subsidiaries, except those Subsidiaries which are identified on Schedule 6.8 , or which are permitted to have been organized or acquired in accordance with Section 8.5 or Section 8.8 . | 83Subsidiaries
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The Company shall use the proceeds from the sale of the Purchased Preferred Stock to consummate the Share Repurchase, if applicable, and otherwise for working capital and general corporate purposes. | 92Use Of Proceeds
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A default shall occur in the due performance or observance by Borrower or Approved Music Venue Manager of any term, covenant or agreement contained in Section 5.8 or in Article VI , provided that such default shall not constitute an Event of Default unless and until it shall remain uncured for 10 days after Borrower receives written notice thereof. | 39Erisa
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You voluntarily resigned from your employment with the Company effective July 1, 2016 (“Termination Date”) and will be paid your regular salary through the Termination Date. You will no longer be allowed on Company premises or at Company functions and you shall not interfere with Company business. | 35Employment
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(i) The Tranche C Lead Arranger shall have received all fees and expenses required to be paid or delivered by the Borrower to it on or prior to such date pursuant to that certain engagement letter, dated as of October 17, 2016 among the Tranche C Lead Arranger and the Borrower, (ii) the Administrative Agent shall have received all fees and other amounts due and payable for the account of any Lender having a Tranche B Term Loan outstanding under the Existing Credit Agreement on or before the Second Incremental Amendment Effective Date, including accrued and unpaid interest with respect to the Tranche B Term Loans and (iii) the Administrative Agent shall have received, for the ratable account of each Lender that delivers an executed counterpart of this Second Incremental Amendment, a fee in an amount equal to 0.50% of the Tranche C Term Loan Commitment of such Lender. | 42Fees
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Capitalized terms used herein that are not otherwise defined shall have the meanings set forth in the Purchase Agreement. | 28Defined Terms
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The closing (the “ Closing ”) of the Transactions will be held at the offices of Latham & Watkins LLP, 811 Main Street, Suite 3700, Houston, Texas at 9:00 a.m. (Houston, Texas time) on the later of (a) the first business day after the conditions set forth in Article V have been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date) and (b) such other date and time as to which the parties agree in writing, in each case subject to the rights of the parties under Article V and Article VIII. The date on which the Closing occurs is herein referred to as the “ Closing Date .” The Closing shall be deemed effective as of 12:01 a.m. (Houston, Texas time) on the Closing Date. | 18Closings
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At any time prior to the Closing Date, the Parties may (a) extend the time for the performance of any of the obligations or other acts of the other Party if requested by the other Party, (b) waive any inaccuracies in the representations and warranties of any Party contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements, covenants or conditions of any Party contained in this Agreement. Any agreement on the part of a Party to any such extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to this Agreement to assert any of its rights under this Agreement or otherwise will not constitute a waiver of those rights. | 97Waivers
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The representations and warranties of the Parties in ARTICLE III and ARTICLE IV of this Agreement shall survive the Closing for a period of eighteen (18) months following the Closing Date; provided , however , that (i) the representations and warranties of the Seller Parties and Seller Parent contained in Sections 3.1 (Organization, Power and Authority of the Seller Parties), 3.2 (Membership Interests), 3.4 (Capitalization and Subsidiaries), 3.5 Ownership of Property), 3.8 (Tax Matters)and 3.14 (Financial Adviser) (the “ Seller Core Representations and Warranties ”) shall survive for the applicable statute of limitations with respect thereto, (ii) the representations and warranties of the Seller Parties and Seller Parent contained in Section 3.11 (Environmental Matters) shall survive the Closing for a period of three (3) years following the Closing Date and (iii) the representations and warranties of the Purchaser Parties contained in Sections 4.1 (Organization, Power and Authority of the Purchaser Parties) and 4.3 (Financial Advisor) (the “ Purchaser Core Representations and Warranties ” and, together with the Seller Core Representations and Warranties, the “ Core Representations and Warranties ”) shall survive for the applicable statute of limitations with respect thereto. | 98Warranties
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This Agreement (including the schedules and exhibits hereto, Seller Documents, and Purchaser Documents) represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings among or between any of the parties relating to the subject matter hereof and thereof. | 38Entire Agreements
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All action on the part of the Corporation for the authorization, execution, delivery and performance by the Corporation of this Agreement has been taken, and this Agreement constitutes a valid and binding obligation of the Corporation, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors' rights. | 10Authorizations
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The Borrower will, and will cause each Restricted Subsidiary to, comply with all Requirements of Law (including Environmental Laws) with respect to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Restricted Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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This Amendment cannot be altered, amended, changed or modified in any respect except in accordance with Section 10.5 of the Loan Agreement. | 2Amendments
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In the event that this Agreement is terminated (x) by the Seller or the Company (i) pursuant to Section 9.1(c)(ii) , and if as of the date of termination (A) the condition set forth in Section 7.1(b) has not been satisfied, including but not limited to the waiting period applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act is still pending as of such date of termination (or the condition set forth in Section 7.1(a) has not been satisfied as the result of a Prohibitive Order issued to enforce any antitrust or competition law of the United States of America) and (B) all other conditions to closing have been, or are readily capable of being, satisfied, or (ii) pursuant to Section 9.1(b) as the result of a Prohibitive Order issued to enforce any antitrust or competition law of the United States of America that has become final and nonappealable, or (y) by the Purchaser pursuant to Section 9.1(d)(ii) , then the Purchaser shall promptly, but in no event later than two days after the date of such termination, pay the Seller an expense reimbursement in the agreed amount of $4,000,000 (the “ Payment ”) in cash by wire transfer of immediately available funds to an account to be indicated by the Seller. Notwithstanding anything to the contrary in this Agreement, the parties agree that if this Agreement is terminated under circumstances in which Purchaser is obligated to pay the Payment under this Section 9.3 and the Payment is actually paid in full, the payment of the Payment shall be the sole and exclusive remedy available to the Seller with respect to this Agreement and the transactions contemplated herein, and, upon payment of the Payment pursuant to this Section 9.3 , the Purchaser and its Affiliates and their respective directors, officers, employees, shareholders and other representatives shall have no further liability with respect to this Agreement or the transactions contemplated herein to the Seller or any of their respective Affiliates or representatives. Each of the parties hereto acknowledges that the Payment is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Seller in the circumstances in which such Payment is due and payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Purchaser be entitled to payment of the Payment on more than one occasion. | 68Payments
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Except as set forth on Schedule 4(d) , as of the date hereof there is no action, suit or proceeding at law or in equity by or before any court or any Governmental Authority pending or, to the knowledge of the Loan Parties threatened against or affecting the Loan Parties. | 58Litigations
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On the Closing Date, the Company shall have paid to the Agents all fees required to be paid on the Closing Date and all reasonable and documented out-of-pocket expenses required to be reimbursed by the Company to the Administrative Agent and the Lead Arranger in connection with the Transaction, in the case of such expenses to the extent invoiced at least one Business Day prior to the Closing Date. | 42Fees
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The undersigned has full power, authority and legal right to execute and deliver, and to perform its obligations under, this Guaranty and has taken all necessary corporate and legal action to authorize the execution, delivery and performance of this Guaranty. | 9Authority
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This Incremental Agreement No. 1 and the other Loan Documents represent the agreement of the Obligors, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any such party relative to the subject matter hereof or thereof not expressly set forth or referred to herein or in the other Loan Documents. | 52Integration
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The U.S. Borrower will, and will cause each of its Subsidiaries to, (i) keep all property necessary to the business of the U.S. Borrower and its Subsidiaries in good working order and condition, ordinary wear and tear excepted and subject to the occurrence of casualty events, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the U.S. Borrower and its Subsidiaries, and (iii) furnish to the Administrative Agent, upon its request therefor, full information as to the insurance carried; provided that the U.S. Borrower and each of its Subsidiaries may self-insure to the extent it reasonably determines that such self-insurance is consistent with prudent business practice. | 51Insurances
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The authorized capitalization of Blackridge consists of 50,000,000 shares of Preferred Stock, $0.001 par value, of which 50,000,000 shares have been designated Series A Preferred Stock and of which 2,356,863 shares are currently outstanding, and 250,000,000 shares of Common Stock, par value $0.001, of which 26,940,527 shares are issued and outstanding. All issued and outstanding shares of Blackridge are legally issued, fully paid, and nonassessable and not issued in violation of the preemptive or other right of any person. There are no dividends or other payments or distributions due or payable with respect to any of the shares of capital stock of Blackridge. It is contemplated that on or prior to the Closing, Blackridge shall (i) issue additional shares of its Series A Preferred Stock at an offering price of not more than $0.60 per share for gross proceeds of not less than $1,798,000; and (ii) issue approximately 31,484,596 shares of its Series A Preferred Stock upon the conversion of promissory notes. Blackridge also has outstanding (i) common stock purchase warrants to acquire 4,915,304 shares of Blackridge at prices ranging from $0.60 to $1.70 per share; (ii) common stock purchase warrants to acquire 1,541,704 shares of Blackridge Common Stock at a price of $0.66 per share; (iii) warrants and options to purchase common stock held by current and former members of management that are exercisable at prices ranging from $0.63 to $1.70 per share; and (iv) a convertible promissory note to an officer in the principal amount of $4,530,124 that is convertible into shares of Blackridge Series A Preferred Stock at a price of $0.66 per share. | 16Capitalization
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Lender may at any time sell to one or more Persons participating interests in the Term Loan, the Term Loan Commitment or its other interests hereunder (any such Person, a “ Participant ”). In the event of a sale by Lender of a participating interest to a Participant, (a) Lender’s obligations hereunder shall remain unchanged for all purposes, (b) Borrower shall continue to deal solely and directly with Lender in connection with Lender’s rights and obligations hereunder and (c) all amounts payable by Borrower shall be determined as if Lender had not sold such participation and shall be paid directly to Lender. Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as Lender under this Agreement; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lender, and Lender agrees to share with each Participant, on a pro rata basis. Borrower also agrees that each Participant shall be entitled to the benefits of Section 5.5 or ARTICLE 6 as if it were Lender ( provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to Section 5.5 or ARTICLE 6 than would have been paid to Lender on such date if no participation had been sold and that each Participant complies with Section 5.5 or ARTICLE 6 as if it were a direct assignee). Each Lender that sells a participation to a Participant shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain at one of its offices a register for the recordation of the names and addresses of each such Participant, and the commitments of, and principal amount of the Term Loan owing to, such Participant (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in the Term Loan, commitments or its other obligations under any Loan Document) to any Person except to the extent that disclosure is required to establish that such a participation in a Term Loan, commitment or other obligation is held by a Participant who is a non-resident alien individual (within the meaning of Code Section 871) or a foreign corporation (within the meaning of Code Section 881) is in registered form (as described above). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall have the right to treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. | 67Participations
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Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when delivered by hand or when deposited in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the Company’s executive office, or to the last address known for Swan. | 65Notices
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Any notice required or desired to be given regarding this Lease shall be in writing and may be given by personal delivery, by facsimile, by courier service, or by mail. A notice shall be deemed to have been given (i) on the third business day after mailing if such notice was deposited in the United States mail, certified or registered, postage prepaid, addressed to the party to be served at its Address for Notices specified in Section Q or Section R of the Summary (as applicable), (ii) when delivered if given by personal delivery, and (iii) in all other cases when actually received at the party’s Address for Notices. Either party may change its address by giving notice of the same in accordance with this Section 15.8, provided, however, that any address to which notices may be sent must be a California address. | 65Notices
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The base salary for the Executive shall be Five Hundred Ten Thousand dollars per year, or such other rate as the Board may designate from time to time (the “Base Salary”). The Base Salary shall be payable in regular installments in accordance with the Company’s general payroll practices and shall be subject to withholdings for applicable taxes and other legally-required or previously-agreed payroll deductions. The Executive’s performance shall be evaluated annually in March of each year. Any future salary increases will be based on the Executive’s individual performance and will be approved by the Board in its sole discretion. | 11Base Salary
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In the event of the termination of this Agreement prior to the scheduled expiration of the Term, then (a) with respect to any Services for which the Fee for such Services is charged as a flat monthly rate, if termination occurs other than the end of the month, the Fee for that month shall be prorated to reflect a partial month, and (b) with respect to any other Services, all amounts due pursuant to the terms hereof with respect to the Services shall be appropriately prorated and reduced to reflect such shortened period during which such Services are actually provided, and MPLS shall refund to HSM the appropriate prorated amount for any such Services that have been paid for in advance. Notwithstanding the immediately preceding sentence, to the extent any amounts due or advances made hereunder related to costs or Expenses that have been or will be incurred and that cannot be recovered by MPLS, such amounts due or advances made shall not be prorated or reduced and MPLS shall not be required to refund any prorated amount for such costs or Expenses; and HSM shall reimburse MPLS for any Third Party cancellation or similar charges incurred as a result of such early termination. | 0Adjustments
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The Company shall employ the Executive, and the Executive agrees to be so employed, in the capacity of [Title] to serve for the Term (as hereinafter defined) hereof, subject to earlier termination as hereinafter provided. | 35Employment
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All notices, requests and demands pursuant hereto shall be made in accordance with Section 13.2 of the DIP Credit Agreement. All communications and notices hereunder to any Guarantor shall be given to it in care of the Company at the Company’s address set forth in Section 13.2 of the DIP Credit Agreement. | 65Notices
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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 be deemed to be one and the same instrument. Grantee’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by Grantee’s hand. | 26Counterparts
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Borrower represents and warrants that Borrower lawfully holds and possesses (a) a valid fee simple interest in the Real Property, as designated on Exhibit A , and the fixtures located thereon and (b) fee simple title to the Subject Property that is not the Real Property or fixtures on the Real Property, without limitation on the right to encumber, and that this Deed of Trust is a first and prior lien on the Subject Property, subject only to the Permitted Liens. Neither Borrower, nor any Affiliate of Borrower, has any interest in any real property, not encumbered hereby, which is utilized in any material manner in connection with the use or operation of the Subject Property or which is necessary and required for the use and operation of the Subject Property. | 90Titles
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This Lease may be only be modified by a writing signed by both Lessor and Tenant. | 60Modifications
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If any provision of this Agreement or the other Loan Papers is held to be illegal, invalid, or unenforceable, (a) the legality, validity, and enforceability of the remaining provisions of this Agreement and the other Loan Papers shall not be affected or impaired thereby, and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid, or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid, or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. | 79Severability
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The Company has all necessary power and authority to enter into, and be bound by the terms of, this Agreement to the fullest extent permitted by law, and the execution, delivery and performance of the undertakings contemplated by this Agreement have been duly authorized by the Company. | 9Authority
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The execution, delivery and performance of this Agreement and the other Loan Documents to which any of Borrower or the Guarantors is a party and the transactions contemplated hereby and thereby (i) are within the authority of such Person, (ii) have been duly authorized by all necessary proceedings on the part of such Person, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which such Person is subject or any judgment, order, writ, injunction, license or permit applicable to such Person, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement, articles of incorporation or other charter documents or bylaws of, or any material agreement or other material instrument binding upon, such Person or any of its properties, (v) do not and will not result in or require the imposition of any lien or other encumbrance on any of the properties, assets or rights of such Person other than liens and encumbrances in favor of Agent contemplated by this Agreement and the other Loan Documents, and (vi) do not require any material approval or consent of any Person other than those already obtained and as are in full force and effect. | 10Authorizations
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CLIENT is responsible for the payment of any and all foreign, federal, state, county and local taxes and fees applicable to transactions under this contract and invoiced to CLIENT by FiCentive. CLIENT shall be responsible for the collection of all applicable end-user taxes and fees and the remittance of such taxes and fees to the relevant governmental authority. | 87Taxes
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This Amendment and the other Loan Documents represent the entire agreement of the Borrower, the Guarantors, the Administrative Agent, the New Term Loan III Lenders and the other Lenders party hereto with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent, the New Term Loan III Lenders or any other Lender party hereto relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. Sections 9.12 and 9.14 of the Credit Agreement are incorporated herein by reference and shall apply mutatis mutandis. | 52Integration
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Schedule 4.18 sets forth, as of the Closing Date and after giving effect to the Transactions, an accurate and complete list and a brief description (including the insurer, policy number, type of insurance, coverage limits, deductibles, expiration dates and any special cancellation conditions) of all policies of property and casualty, liability (including, but not limited to, product liability), business interruption, workers’ compensation, and other forms of insurance owned or held by the Restricted Parties or pursuant to which any of their respective assets are insured. The assets, properties and business of the Restricted Parties are insured against such hazards and liabilities, under such coverages and in such amounts, as are customarily maintained by prudent companies similarly situated and under policies issued by insurers of recognized responsibility. | 51Insurances
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In the event of any change in corporate capitalization, corporate transaction, sale or other disposition of assets or similar corporate transaction or event involving the Company as described in Section 5.5 of the Plan, the Committee shall make equitable adjustment as it determines necessary and appropriate in the number of RSUs subject to this Agreement. No adjustment shall be made if such adjustment is prohibited by Section 5.5 of the Plan (relating to Section 409A of the Code). | 17Change In Control
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The Holders represent that the Notes represent all of the instruments that each has entered into with Maker and there are no additional agreements/instruments between any of the Holders and Maker. Each of the parties covenants and agrees, at its own expense, to execute and deliver, at the request of the other party, such further instruments and to take such other action as such other party may reasonably request to effectuate the terms of this Agreement. | 76Representations
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The proceeds of the Loans shall be used solely to repay amounts outstanding under the Existing Credit Agreement, fund repayment of the GE Credit Agreement, to pay the cash portion of the Acquisition consideration and pay fees and expenses in connection with the Acquisition and related transactions. | 92Use Of Proceeds
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The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of (i) the Company, (ii) Liberty (so long as any Liberty Holder holds any Registrable Securities) and (iii) A/N (so long as any A/N Holder holds any Registrable Securities). | 2Amendments
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Each Party shall use all information that it obtains from the others pursuant to this Agreement solely for the effectuation of the transactions contemplated by this Agreement or for other purposes consistent with the intent of this Agreement and shall not use any of such information for any other purpose, including, without limitation, the competitive detriment of the other Parties. Each Party may disclose such information to its/their respective affiliates, counsel, accountants, tax advisors and consultants as necessary to consummate this transaction. This provision shall not prohibit the use or disclosure of confidential information pursuant to court order or which has otherwise become publicly available through no fault of the recipient Party. | 20Confidentiality
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This Amendment shall be construed and interpreted in accordance with the rules of construction set forth in Sections 1.02 , 1.03 , 1.04 , 1.05 and 1.06 of the Amended and Restated Credit Agreement. | 55Interpretations
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No modification, consent, amendment or waiver of any provision of this Agreement, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and signed by an officer of Lender, and then shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Borrower in any case shall, of itself, entitle Borrower to any other or further notice or demand in similar or other circumstances. No delay or omission by Lender in exercising any power or right hereunder shall impair any such right or power or be construed as a waiver thereof or any acquiescence therein, nor shall any single or partial exercise of any such power preclude other or further exercise thereof, or the exercise of any other right or power hereunder. All rights and remedies of Lender hereunder are cumulative of each other and of every other right or remedy which Lender may otherwise have at law or in equity or under any other contract or document, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. All accounting terms not specifically defined herein shall be construed in accordance with GAAP on the basis used by Borrower in prior years. This Agreement is binding upon Borrower, its successors and assigns, and inures to the benefit of Lender, its successors and assigns; provided, however, that Borrower may not assign its rights or obligations hereunder without Lender’s prior written consent. | 59Miscellaneous
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By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or any Lender, the Issuing Bank that is the issuer thereof hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank under such Letter of Credit and not reimbursed by the applicable Borrower on the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the applicable Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit, the occurrence and continuance of a Default, any reduction or termination of the Commitments or any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any successor publication of the International Chamber of Commerce) permits a drawing to be made under such Letter of Credit after the expiration thereof or of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender further acknowledges and agrees that, in issuing, amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the applicable Borrower deemed made pursuant to Section 4.02, unless, at least two Business Days prior to the time such Letter of Credit is issued, amended, renewed or extended (or, in the case of an automatic renewal permitted pursuant to paragraph (c) of this Section, at least two Business Days prior to the time by which the election not to extend must be made by the applicable Issuing Bank), the Required Lenders shall have notified the applicable Issuing Bank (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02 would not be satisfied if such Letter of Credit were then issued, amended, renewed or extended (it being understood and agreed that, in the event any Issuing Bank shall have received any such notice, no Issuing Bank shall have any obligation to issue, amend, renew or extend any Letter of Credit until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). | 67Participations
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The Plan shall be effective as of May 10, 2016; subject to the approval of the stockholders of the Company (the “ Stockholders ”). Such approval shall meet the requirements of Section 162(m) of the Code and the regulations thereunder. If such approval is not obtained, then the Plan shall not be effective. | 33Effective Dates
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THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. | 82Submission To Jurisdiction
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Each Seller shall keep or cause to be kept in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Purchased Assets to Administrative Agent for benefit of Buyers. Each Seller shall cause each Seller Party Subsidiary to keep in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Contributed REO Property, Contributed Rental Property and Contributed Mortgage Loans to such Seller Party Subsidiary. | 14Books
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Fortress Biotech, Inc. (the “ Company ”), for value received, pursuant to this Senior Secured Convertible Promissory Note (the “ Note ”), hereby promises to pay to the order of_____________(“ Holder ”) in lawful money of the United States of America, the principal amount as may be advanced from time to time by Holder as shown on Exhibit A attached hereto, with interest from the date of each advance at 12% per annum on the unpaid balance until paid. Interest shall be accrued in accordance with the Facility Agreement. Such principal and Accrued Interest Amounts shall be due and payable in accordance with the Facility Agreement. All unpaid principal and interest on this Note may be prepaid at any time without penalty. | 54Interests
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Executive shall be entitled to five (5) weeks paid vacation each calendar year in accordance with the general policies of QTS or the Company. | 93Vacations
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This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Copies of originals, including copies delivered by facsimile, pdf or other electronic means shall have the same import and effect as original counterparts and shall be valid, enforceable and binding for purposes of this Agreement. | 26Counterparts
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Executive agrees that he will not do or say anything that could reasonably be expected to disparage or impact negatively the name or reputation in the marketplace of the Company or any of its affiliates, employees, officers, directors, stockholders, members, principals or assigns. Nothing in this Section 6(b) shall preclude Executive from responding truthfully to any legal process or truthfully testifying in a legal or regulatory proceeding, provided that, to the extent permitted by law, Executive promptly informs the Company of any such obligation prior to participating in any such proceedings. The Company likewise agrees that it will not release any information or make any statements, and its officers and directors shall not do or say anything that could reasonably be expected to disparage or impact negatively the name or reputation in the marketplace of Executive. Nothing herein shall preclude the Company or any of its affiliates, employees, officers, directors, stockholders, members, principals or assigns from responding truthfully to any legal process or truthfully testifying in a legal or regulatory proceeding, provided that to the extent permitted by law, the Company will promptly inform Executive in advance if it has reason to believe such response or testimony will directly relate to Executive, or preclude the Company from complying with applicable disclosure requirements. | 64Non-Disparagement
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If an Account of any Borrower includes a charge for any Taxes, the Agent is authorized, in its discretion after the occurrence of an Event of Default and during the continuation thereof, to pay the amount thereof to the proper taxing authority for the account of such Borrower and to charge Borrowers therefor; provided, however, that the Agent shall not be liable for any Taxes that may be due from Borrowers or with respect to any Collateral. | 87Taxes
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All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid, any Letter of Credit is outstanding or the Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof. | 85Survival
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Any financial statement, report, notice, proxy statement, registration statement, prospectus or other document required to be delivered pursuant to this Section 5.1 shall be delivered in accordance with Section 10.1 and shall be deemed to have been delivered on the date on which such financial statement, report, notice, proxy statement, registration statement, prospectus or other document is posted on the SEC’s website on the Internet at www.sec.gov and, in each case, such financial statement, report, notice, proxy statement, registration statement, prospectus or other document is readily accessible to the Administrative Agent on such date; provided that Borrower shall give notice of any such posting to Administrative Agent (who shall then give notice of any such posting to the Lenders). Furthermore, if any financial statement, certificate or other information required to be delivered pursuant to this Section 5.1 shall be required to be delivered on any date that is not a Business Day, such financial statement, certificate or other information may be delivered to Administrative Agent on the next succeeding Business Day after such date. | 46General
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The proceeds of the Loans shall be used to fund the refinancing of existing revolving and term indebtedness payable to the Existing Lender pursuant to the Existing Credit Agreement, pay fees, commissions, Swap Termination Value and expenses in connection therewith, to fund Permitted Acquisitions in accordance with the provisions hereof and for the general working capital and general corporate purposes of the Borrower and its Subsidiaries. | 92Use Of Proceeds
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THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT. | 96Waiver Of Jury Trials
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I agree that I will not disclose to others the fact or terms of this Agreement, except that I may disclose such information to my spouse, and to my attorneys and accountants in order for them to render professional services to me. | 20Confidentiality
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With effect from April 30, 2016, Schedule A to the Original Agreement shall be hereby amended by deleting the reference to “$325,000,000” therein, and replacing it with “$275,000,000” . | 2Amendments
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The Seller and Shareholder delivered to the Purchaser the following financial statements (collectively, the “Financial Statements”): (a) the unaudited balance sheets of the Seller as of December 31, 2014 and 2015 by quarter and as of the Closing Date, the related statements of income and retained earnings for 2014 by quarter and 2015 by quarter and as of the Closing Date, and the statements of cash flows for the years 2014 and 2015 and as of the Closing Date. The Financial Statements are accurate and complete in all material respects, have been prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods covered (except that the interim financial statements referred to in clause “(a)”of this Section 2.2 do not have notes) and present fairly in all material respects the financial position of the Seller as of the respective dates thereof and the results of operations and cash flows of the Seller for the periods covered thereby. | 43Financial Statements
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Whenever notice is required to be given under this Amendment Agreement, unless otherwise provided herein, such notice shall be given in accordance with Section 9(f) of the SPA. | 65Notices
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No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed in writing and signed by the Covered Person and by an authorized officer of the Company (other than the Covered Person). No waiver by either party of any breach of, or compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision of the same condition or provision at another time. | 97Waivers
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Any notice required or permitted hereunder shall be given, (a) with respect to the Company, at the address of the Company indicated in Schedule 10.02 of the Credit Agreement and (b) with respect to the Administrative Agent or any other Secured Party, at the Administrative Agent’s address indicated in Schedule 10.02 of the Credit Agreement. All such addresses may be modified, and all such notices shall be given and shall be effective, as provided in Section 10.02 of the Credit Agreement for the giving and effectiveness of notices and modifications of addresses thereunder. | 65Notices
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During the period you are employed by OvaScience, Limited, you will be eligible to participant in any and all benefit programs that OvaScience, Limited establishes and makes available to its employees from time to time, provided you meet the specific eligibility criteria as set forth in (and subject to all provisions of) the plan documents governing those programs. Once your employment is transferred to the Company, you will be eligible to participate in any and all benefit programs that the Company establishes and makes available to its employees from time to time, provided you meet the specific eligibility criteria as set forth in (and subject to all provisions of) the plan documents governing those programs, provided that your service with OvaScience, Limited shall be credited as service with the Company for purposes of meeting eligibility requirements. The benefits made available by the Company, and the rules, terms and conditions for participation in such benefit plans, may be changed by the Company at any time and from time to time without advance notice. | 12Benefits
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If an event of default occurs, the outstanding Principal Amount of this Note owing in respect thereof through the date of acceleration, shall become, at the Holder's election, immediately due and payable in cash at the " Mandatory Default Amount ". The Mandatory Default Amount means 150% of the outstanding Principal Amount of this Note. Commencing 5 days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, this Note shall accrue additional interest, in addition to the Note's "guaranteed" interest, at a rate equal to the lesser of 20% per annum or the maximum rate permitted under applicable law. Finally, commencing 5 days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, an additional permanent 10% increase to the Conversion Price discount will go into effect. In connection with such acceleration described herein, the Holder need not provide, and the Issuer hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by the Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the note until such time, if any, as the Holder receives full payment pursuant to this Section 2.00(b). No such rescission or annulment shall affect any subsequent event of default or impair any right consequent thereon. Nothing herein shall limit the Holder's right to pursue any other remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Issuer's failure to timely deliver certificates representing shares of Common Stock upon conversion of the Note as required pursuant to the terms hereof. | 75Remedies
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This Agreement shall be construed and regulated in all respects under the laws of the State of Maryland without reference to principles of conflict of laws. | 47Governing Laws
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As set forth in Section 5, you will have the opportunity to consider this Agreement for at least 21 days before signing it. For the period of seven (7) days from the date when you execute this Agreement, you have the right to revoke it by written notice. For such a revocation to be effective, it must be delivered to our General Counsel, Jason Cole, so that he receives it at or before the expiration of the seven (7) day revocation period. This Agreement shall become effective on the first day following the expiration of the revocation period (the “Effective Date”). | 33Effective Dates
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