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Neither this Agreement nor any rights or duties of a party hereto may be assigned by such party, in whole or in part, without (a) the prior written consent of the Company in the case of any assignment by an Investor; or (b) the prior written consent of the Investor in the case of an assignment by the Company. | 7Assignments
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The execution and delivery of this Agreement and the other Transaction Documents, the performance of KaloBios’ obligations hereunder and thereunder and the assignments and licenses to be granted pursuant to the Transaction Documents do not and will not (a) conflict with or violate any requirement of applicable Law; (b) conflict with or violate the certificate of incorporation, bylaws or other organizational documents of KaloBios; (c) conflict with, violate, breach or constitute a default under any material contractual obligations of KaloBios or any of its Affiliates; or (d) conflict with or violate any Government authorization, permit or consent. No Person has any right to cause KaloBios to effect the registration under the Securities Act of any securities of KaloBios or any of its Affiliates, and neither KaloBios nor any of its Affiliates is a party to or otherwise bound by any oral or written contract or agreement that would prevent or restrict the ability of KaloBios to register for resale the Warrant Shares under the Securities Act or otherwise limit the amount of Warrant Shares that KaloBios could register for resale under the Securities Act. | 61No Conflicts
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(a) Any notice or other instrument in writing, authorized or required by this Agreement to be given to Securities Intermediary, shall be sufficiently given if addressed to Securities Intermediary and received by it at its offices at 101 Barclay Street, New York, New York 10286, or at such other place as Securities Intermediary may from time to time designate in writing. | 65Notices
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(h) Each Lender shall have the right at any time to sell one or more participations to any Person (other than the Lead Borrower any of its Subsidiaries or any of its Affiliates (excluding Affiliate Lenders)) in all or any part of its Revolving Advances or Revolving Commitments or in any other Obligation; provided , that (x) such Lender’s obligations under this Agreement shall remain unchanged, (y) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (z) the Borrowers, the Agents, the Issuers and the Lenders 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 9.10 with respect to any payments made by such Lender to its participants. | 67Participations
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Capitalized terms used and not otherwise defined herein (including in the preliminary statements hereto) have the meanings assigned to them in the Restated Credit Agreement for all purposes of this Amendment Agreement. | 28Defined Terms
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Any notice required to be given to RGP pursuant to this Agreement, shall be in writing and shall be deemed to have been sufficiently given either when served personally or via facsimile and addressed to the appropriate party. Any notice required to be given to Employee pursuant to this Agreement shall be in writing and shall be deemed to have been sufficiently given when served personally, by first class mail or via facsimile. Notices to RGP shall be effective only when addressed to: Chief Legal Officer, Resources Global Professionals, 17101 Armstrong Avenue, Irvine, California 92614; facsimile (714) 430-6424. Notice to Employee shall be effective only when addressed to: . | 65Notices
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The Borrowers shall, and shall cause each of their Subsidiaries to, (a) comply with all Requirements of Law and all restrictive covenants affecting such Person or the business, Property, assets or operations of such Person, and (b) obtain and maintain as needed all Permits necessary for its operations (including, without limitation, the operation of the Projects) and maintain such Permits in good standing, except where noncompliance with either clause (a) or (b) above is not reasonably likely to have a Material Adverse Effect or a Mall Owner Material Adverse Effect; provided , however , that the Borrowers shall, and shall cause each of their Subsidiaries to, comply with all Environmental, Health or Safety Requirements of Law affecting such Person or the business, Property, assets or operations of such Person. The Borrowers will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrowers, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and, except as expressly provided in Section 7.2(f) , supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way. | 38Entire Agreements
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By establishing the Plan, granting awards under the Plan, and entering into this Agreement, the Company does not give the Grantee any right to continue to be employed by the Company or to be entitled to any remuneration or benefits not set forth in this Agreement or the Plan . | 35Employment
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This Agreement, together with all exhibits hereto, embody the entire understanding between the Parties relating to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, including that certain Mutual Non-Disclosure Agreement dated May 15, 2015 between Licensor and AAVLife SAS. All “Confidential Information” (as defined in such Mutual Non-Disclosure Agreement) disclosed by one Party to the other Party pursuant to such Mutual Non-Disclosure Agreement shall be deemed “Confidential Information” of such disclosing Party under this Agreement (unless and until it falls within one of the exclusions set forth in Section 1.9). This Agreement may not be varied except by a written document signed by duly authorized representatives of both Parties. | 38Entire Agreements
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Executive acknowledges and agrees that he has carefully read this Agreement and Release and understands that it is a release of all claims, known and unknown, past or present including all claims under the Age Discrimination in Employment Act. He further agrees that he has entered into this Agreement and Release for the above stated consideration. He warrants that he is fully competent to execute this Agreement and Release which he understands to be contractual. He further acknowledges that he executes this Agreement and Release of his own free will, after having a reasonable period of time to review, study and deliberate regarding its meaning and effect, and after being advised to consult an attorney, and without reliance on any representation of any kind or character not expressly set forth herein. Finally, he executes this Agreement and Release fully knowing its effect and voluntarily for the consideration stated above. | 1Agreements
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No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent or any Lender (other than projections and other forward-looking information and information of a general economic or industry-specific nature) in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any Other Document (as modified or supplemented by other information so furnished) contained when furnished any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made or furnished, not materially misleading. Projected financial information and pro forma financial information delivered by or on behalf of any Loan Party to any Agent or any Lender prior to the Restatement Effective Date was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and may vary from actual results and that such variances may be material. There is no fact known to any Loan Party or which reasonably should be known to such Loan Party which such Loan Party has not disclosed to the Administrative Agent in writing with respect to the Transactions which could reasonably be expected to have a Material Adverse Effect. | 31Disclosures
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Subject to the DIP Orders, each of the Parent and the Borrower will, and will cause each of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of their business, except where the failure to so preserve, renew or keep could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03. | 40Existence
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In the event that any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby. | 79Severability
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This Agreement shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of the Commonwealth of Virginia without reference to the principles of conflicts of law of the Commonwealth of Virginia or any other jurisdiction, and where applicable, the laws of the United States. | 47Governing Laws
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This Assignment shall be binding upon and inure to the benefit of Assignor, Assignee and their respective successors and assigns. The parties shall execute and deliver such further and additional instruments, agreements, and other documents as may be necessary to evidence or carry out the provisions of this Assignment. | 13Binding Effects
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EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THE SEPARATION AGREEMENT OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SPINCO AGREES THAT UNDER NO CIRCUMSTANCES WILL PARENT OR ITS AFFILIATES BE RESPONSIBLE FOR THE PERFORMANCE BY SPINCO IN ANY RESPECT OF THE SUBJECT CONTRACTS OR TO ANY SPINCO COMPANY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED TO SPINCO’S PERFORMANCE OF THE SUBJECT CONTRACTS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. SPINCO, ON BEHALF OF ITSELF AND THE OTHER SPINCO COMPANIES, FOREVER WAIVES, RELEASES AND DISCHARGES PARENT AND ITS AFFILIATES FROM ANY AND ALL CAUSES OF ACTION WHATSOEVER AT LAW OR IN EQUITY THAT MAY ARISE FROM OR IN CONNECTION WITH SPINCO’S PERFORMANCE OF THE SUBJECT CONTRACTS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. | 97Waivers
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Except as provided herein, this Agreement contains the entire agreement between the Company and the Executive with respect to the subject matter hereof and, from and after the Effective Date, this Agreement shall supersede any other agreement (including the Cash America Severance Agreement) between the parties with respect to the subject matter hereof. By entering into this Agreement, Executive hereby waives any and all rights to any compensation and/or severance benefits under the Cash America Severance Agreement (including, without limitation, any severance benefits payable upon a Qualifying Termination, as such term is defined in the Cash America Severance Agreement, as a result of the transactions contemplated by the Merger Agreement). | 38Entire Agreements
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Except as expressly provided herein, you acknowledge and agree that you are not entitled to and will not receive any additional compensation, wages, reimbursement, severance, or benefits from the Company. | 12Benefits
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This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii, without reference to the principles of conflict of laws thereof. | 47Governing Laws
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This Agreement constitutes the entire agreement and understanding between you and the Company concerning the compensation to be paid to you and all of the terms and conditions of your employment and supersedes all prior agreements concerning same, whether written or oral, except as specifically set forth herein. Each party agrees to pay reasonable attorney’s fees and costs incurred by the other if the other party is successful in enforcing its rights under this Agreement in any court action, arbitration or other proceeding. This Agreement may not be modified or amended except by written instrument duly executed by each of the parties. A waiver by either party of any term or condition of this Agreement or the breach thereof shall not be deemed to constitute a waiver of any other term or condition of this Agreement or of any subsequent breach of any term or condition hereof. The parties agree the terms of this Agreement are retroactive to May 1, 2015. | 59Miscellaneous
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Except as otherwise expressly set forth in this Agreement, the representations, warranties and covenants of Saltzman contained in this Agreement will survive any termination of Saltzman’s employment with CFI and its Affiliates through and until the expiration of the Restricted Period. | 85Survival
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This Agreement and Employee’s employment hereunder shall continue during the Term and thereafter until terminated as provided herein. Upon termination of this Agreement and Employee’s employment hereunder, Employee shall immediately resign from any officer, director or other position in which she is serving on behalf of the Company or any Affiliate, and shall tender her resignation as a director of any and all Affiliates of the Company. | 88Terminations
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Each Holder hereby represents and warrants to TPB that it owns beneficially and exclusively of record and has good, valid and marketable title to the Warrant set forth opposite such Holder’s name on Schedule 1 free and clear of any security interest, lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind and has the full right, power and authority to sell, transfer and deliver such Warrant, and such Holder does not own, directly or indirectly, any warrants to purchase common units of Intrepid other than such Warrant. | 76Representations
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Schedule 7.1.(f) is, as of the Agreement Fourth Amendment Effective Date, a complete and correct listing of all real estate assets of the Loan Parties and the other Subsidiaries. Schedule 4.1. attached hereto is, as of the Agreement Fourth Amendment Effective Date, a complete and correct listing of all Borrowing Base Properties owned by the Loan Parties and Non-Loan Party BB Property Subsidiaries . Each of the Loan Parties and all other Subsidiaries have good, marketable and legal title to, or a valid leasehold interest in, their respective assets (subject to Permitted Liens and, in the case of Subsidiaries that are not Loan Parties or Non-Loan Party BB Property Subsidiaries , Liens not prohibited by this Agreement). No Borrowing Base Property or any ownership interest of the Borrower in any Subsidiary that directly or indirectly owns any Borrowing Base Property is subject to any Lien other than Permitted Liens. Unless otherwise waived in accordance with the terms of this Agreement, each Borrowing Base Property included in the Unencumbered Pool satisfies all applicable requirements under Section 4.2. | 57Liens
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Each of the Administrative Agent, the Banks and the Fronting Banks agrees to maintain the confidentiality of the Information (as defined below) and to use such Information solely for the purposes of this Agreement and the transaction contemplated hereby, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives who are actively and directly participating in the evaluation, administration or enforcement of the Loan, this Agreement and the transactions contemplated by this Agreement (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 9.15, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 9.15 or (y) becomes available to the Administrative Agent, any Bank, any Fronting Bank or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower that is not to the knowledge of such Credit Party subject to confidentiality obligations to the Borrower or any of its Affiliates. | 20Confidentiality
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The Participant and the Company agree that this Agreement, and the portions of the Original Agreement expressly incorporated herein, set forth the entire agreement between the Participant and the Company regarding the subject matter referenced herein and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matters, including without limitation the Original Agreement (except as expressly incorporated herein). | 38Entire Agreements
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This Warrant Agreement and the Warrant Certificates constitute the entire agreement of the Company, the Warrant Agent and the Beneficial Owners and Warrantholders with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Company, the Warrant Agent and the Beneficial Owners and Warrantholders with respect to the subject matter hereof. | 38Entire Agreements
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NuGene shall indemnify Kharazmi to the fullest extent permitted by NuGene’s Bylaws and applicable Delaware law. The Parties further agree that all liabilities incurred by Kharazmi in his capacity as Chairman shall be incurred for the account of NuGene, and Kharazmi shall not be personally liable therefore. Kharazmi shall not be liable to NuGene, or any of its respective subsidiaries, affiliates, employees, officers, directors, agents, representatives, successors, assigns, stockholders, and their respective subsidiaries and affiliates, and NuGene shall, and hereby agrees to, indemnify, defend and hold Kharazmi harmless from and against any and all damages and/or loss or liability (including, without limitation, all cost of defense thereof), for any acts or omissions in the performance of service under and within the scope of this Agreement on the part of Kharazmi, other than for acts which are deemed to be grossly negligent or criminal in nature. | 49Indemnifications
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Bonanza Creek Energy, Inc. (the “ Company ”) has adopted this Second Amended and Restated Executive Change in Control and Severance Benefit Plan (this “ Plan ”) to provide for the payment of severance or change in control benefits to Eligible Individuals (as defined below). The Plan was approved by the Board of Directors of the Company (the “ Board ”) to be effective as of September 26, 2016 (the “ Effective Date ”). | 33Effective Dates
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This Agreement may be executed in counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. | 26Counterparts
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Such Credit Party will, and will cause each of its Material Subsidiaries to, make, execute, endorse, acknowledge and deliver any amendments, modifications or supplements hereto and restatements hereof and any other agreements, instruments or documents, and take any and all such other actions, as may from time to time be reasonably requested by the Administrative Agent or the Required Lenders to effect, confirm or further assure or protect and preserve the interests, rights and remedies of the Administrative Agent and the Lenders under this Agreement and the other Credit Documents. | 45Further Assurances
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No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any officer, director or Affiliate of Holdings or any its Subsidiaries on terms that are less favorable to Holdings or such Subsidiary, as the case may be, than those that might be obtained in a comparable arm’s length transaction at the time from a Person who is not an officer, director or Affiliate of Holdings or any of its Subsidiaries; provided , the foregoing restriction shall not apply to (a) any transaction between or among the Credit Parties and (b) normal and reasonable compensation and reimbursement of expenses of officers and directors in the ordinary course of business. | 91Transactions With Affiliates
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This Option Agreement, the Notice and the Offer Letter constitute the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior discussions between them. Any prior agreements, commitments or negotiations concerning this Option are superseded. No modification of or amendment to this Option Agreement, nor any waiver of any rights under this Option Agreement, shall be effective unless in writing and signed by the parties to this Option Agreement. The failure by either party to enforce any rights under this Option Agreement shall not be construed as a waiver of any rights of such party. | 38Entire Agreements
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The CIRR Fee shall be payable by the Borrower in EUR quarterly in arrears from the date of commencement of the period described in Section 3.5 and, if applicable, on the earliest of (i) the date falling sixty (60) days prior to the expected Disbursement Date, (ii) the date falling thirty-two (32) days after the date on which the Borrower elects the Floating Rate pursuant to Section 3.3.2 or, as to any portion of the Loan converted to a Floating Rate Loan pursuant to Section 3.3.3 , the date on which such portion so converts to a Floating Rate Loan, (iii) the date upon which the Facility Agent has provided written notice to the Borrower that the Lenders will not advance the Loan because the Commitments shall have been terminated pursuant to Section 8.2 or 8.3 and (iv) any other date on which the Commitments shall have been terminated. | 68Payments
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Seller shall keep the Property insured under its current or comparable policies (evidence of which policies have been provided to Purchaser as part of the Seller Deliverables), including, but not limited, to Seller’s coverage against fire and other hazards. | 51Insurances
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No broker, finder, financial advisor or investment banker, other than Lazard Middle Market LLC (whose fees shall be included in Seller Expenses), is entitled to any broker’s, finder’s, financial advisor’s, investment banker’s fee or commission or similar payment in connection with the Transactions based upon arrangements made by or on behalf of Sellers. | 15Brokers
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This Award Agreement shall be binding upon any successor of the Company, in accordance with the terms of this Award Agreement and the Plan. | 84Successors
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Tenant represents and warrants that it has not directly or indirectly dealt, with respect to the leasing of office space in the Building, with any broker or had its attention called to the Premises or other space to let in the Building, etc. by anyone other than the broker, person or firm, if any, designated in Exhibit 1. Tenant agrees to defend, exonerate and save harmless and indemnify Landlord and anyone claiming by, through or under Landlord against any claims for a commission arising out of the execution and delivery of this Lease or out of negotiations between Landlord and Tenant with respect to the leasing of other space in the Building, provided that Landlord shall be solely responsible for the payment of brokerage commissions to the broker, person or firm, if any, designated as Landlord’s Broker in Exhibit 1. Landlord shall pay a brokerage commission to Tenant’s Broker and Landlord’s Broker, pursuant to separate agreements between Landlord and Landlord’s Broker and Landlord and Tenant’s Broker. | 15Brokers
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In the event of a Change in Control, any then-unvested PSUs shall vest in accordance with Appendix A and shall become immediately vested on the effective date of the termination of Participant’s Continuous Service if, within twenty-four (24) months following a Change in Control, Participant’s Continuous Service is terminated by (i) the Company or a Subsidiary without Cause or (ii) Participant for Good Reason. | 17Change In Control
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This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts (including by facsimile or electronic delivery (PDF), and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument. | 26Counterparts
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This Amendment may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Amendment by fax, emailed pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. | 26Counterparts
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All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any funding of any Loan, and shall continue in full force and effect until Payment in Full of the Obligations. | 98Warranties
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The Holder has the requisite legal capacity, power and authority to enter into, and perform under, this Agreement and to exchange such Holder’s Holder Options and receives the Shares in exchange thereof. The execution, delivery and performance of this Agreement and performance by such Holder and the consummation by such Holder of the transactions contemplated hereby have been duly authorized by all requisite corporate, partnership or similar action on the part of such Holder and no further consent or authorization is required. This Agreement has been duly executed and delivered by the Holder, and constitutes the legal, valid and binding obligations of the Holder, enforceable against the Holder in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws. Holder understands that by executing this Agreement, Holder is automatically, irrevocably and contemporaneously exchanging such Holder’s Holder Options and thereafter such Holder Options will be null and void. | 10Authorizations
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Prior to the Closing Time, Seller shall (i) maintain the Assets in customary repair, order, and condition, reasonable wear and tear and damage by fire or other unavoidable casualty excepted; (ii) maintain insurance on the Assets consistent with its historical practices and all risk of loss shall be on Seller; and (iii) remain in substantial compliance with any obligations it has under the Assumed Contracts or otherwise relating to maintenance of and insurance upon the Assets. | 51Insurances
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Purchaser has the requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement by Purchaser, the performance by it of its obligations hereunder and the consummation by Purchaser of the transactions contemplated herein have been duly authorized by the manager(s) of Purchaser, and no other limited liability company proceedings on the part of Purchaser are necessary to authorize the execution and delivery of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser and constitutes a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization or similar laws affecting the rights of creditors generally or by general principles of equity. | 9Authority
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This Agreement may be terminated by Purchaser, as to Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the Purchaser, by written notice to the other party, if the Closing has not been consummated on or before December 5, 2016 [1] ; provided , however , that such termination will not affect the right of any party to sue for any breach by any other party. | 88Terminations
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Except as disclosed to the Administrative Agent by the Borrower in writing from time to time after the Amendment Signing Date, (a) Schedule 4.15 (i) sets forth the name and jurisdiction of organization of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party and (ii) identifies all of the Unrestricted Subsidiaries and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of any Subsidiary of the Borrower, except to the extent permitted by the Loan Documents. | 83Subsidiaries
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After giving effect to such change in registration, the insurance requirements of Section 10 are satisfied in respect of the applicable Aircraft. | 51Insurances
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Any action which may be brought in a court of law with respect to this Agreement may be brought in the courts of the Province of British Columbia, and the Executive accepts for himself and with respect to the Executive’s property, generally and unconditionally, the jurisdiction of these courts. The Executive irrevocably waives any objection, including, but not limited to, any objection of the laying of venue or based on the grounds of forum non conveniens , which the Executive may now or hereafter have to the bringing of any action in those jurisdictions. | 82Submission To Jurisdiction
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Mr. DeCarlo specifically covenants and agrees not to, directly or indirectly, make or cause to be made to anyone any statement, orally or in writing, criticizing or disparaging the Company with respect to his employment with the Company. The Company specifically covenants and agrees not to, directly or indirectly, make or cause to be made to anyone any statement, orally or in writing, criticizing or disparaging Mr. DeCarlo with respect to his employment with the Company. Further, from and after the date of this Agreement, Mr. DeCarlo shall refrain from (i) discussing the terms of this Agreement with any party other than Mr. DeCarlo’s spouse, attorney, or accountant (except to the extent Mr. DeCarlo legally is compelled to do so); (ii) initiating any communication regarding Mr. DeCarlo’s involvement with the Company or the Company in general with any of the Company’s past or present directors, officers, employees, shareholders, agents, potential acquisition candidates or with any other party engaged or involved, in any manner, in the death care industry who has a relationship with the Company; and (iii) holding himself out as being associated, in any manner, with the Company, including by attending any conference or event on behalf of the Company. | 64Non-Disparagement
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The business and operations of Steampunk have been and are being conducted materially in accordance with all applicable Laws and Orders. Steampunk has not received notice of any violation (or any Proceeding involving an allegation of any violation) of any applicable Law or Order by or affecting Steampunk and, to the Knowledge of Steampunk, no proceeding involving an allegation of violation of any applicable Law or Order is threatened or contemplated. To the Knowledge of Steampunk, it has complied with all federal and state securities laws in connection with the offer, sale and distribution of its securities. At the time that Steampunk sold the Shares to the Sellers, Steampunk was entitled to use the exemptions provided by the Securities Act of 1933 (the “ Securities Act ”) relative to the sale of its shares. | 19Compliance With Laws
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Attached to Section 3(g) of the Disclosure Schedule are the following financial statements (collectively the “ Financial Statements ”): (i) audited balance sheets and statements of income, statement of members’ equity, and cash flow as of and for the fiscal years ended December 31, 2013 and December 31, 2014 for Seller; (ii) unaudited balance sheet and statement of income, statement of members’ equity, and cash flow as of and for the fiscal year ended December 31, 2015 (the “ Most Recent Year Financial Statements ”); and (iii) unaudited balance sheet and statement of income, and cash flow (the “ Most Recent Financial Statements ”) as of and for the three months ended March 31, 2016 (the “ Most Recent Fiscal Month End ”) for Logicmark. Except as set forth on Section 3(g) of the Disclosure Schedule, the Financial Statements (including the notes thereto) have been prepared in accordance with GAAP and present fairly the financial condition of Logicmark as of such dates and the results of operations of Logicmark; provided, however, that the Most Recent Year Financial Statements and Most Recent Financial Statements are subject to normal year-end adjustments and lack footnotes and other presentation items. All Indebtedness of the Company as of immediately prior to the Closing (including the outstanding amount thereof) is set forth on Section 3(g) of the Disclosure Schedule. | 43Financial Statements
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The representations and warranties of SB RS set forth in Section 3 of this Agreement shall be true and correct as of the date of this Agreement and as of the Assignment Date, as though made on and as of the Assignment Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality” or “SB RS Material Adverse Effect”) would not be reasonably likely to have, individually or in the aggregate, a SB RS Material Adverse Effect. | 76Representations
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Section 4.19 of the Company Disclosure Schedules lists as of the date of this Agreement all policies of property, fire and casualty, workers’ compensation, and other forms of insurance held by the Company or any of its Subsidiaries or held by an Affiliate of the Company and which cover or relate to the assets of the Company or any of its Subsidiaries and describes any self-insurance or co-insurance arrangements by or affecting the Company or any of its Subsidiaries. True and complete copies of the insurance policies held by the Company or its Subsidiaries and listed on Section 4.19 of the Company Disclosure Schedules (the “ Company Policies ”) have been made available to Buyer. None of the Company or any of its Subsidiaries has received any written notice from any insurer under any such Company Policies notifying of non-renewal of such policy or canceling any such policy or denying coverage thereunder. All premiums on such Company Policies due and payable as of the date hereof have been paid and all of such Company Policies are in full force and effect. There are no pending claims against any Company Policies by either the Company or any of its Subsidiaries that insurers are defending under reservation of rights and, to the Company’s Knowledge, there exists no claim under any Company Policy that has not been properly filed by or on behalf of the Company or any of its Subsidiaries. Except as set forth on Section 4.19 of the Company Disclosure Schedules, such Company Policies will not be affected by or terminate or lapse by reason of the Transactions. | 51Insurances
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The Company and its Subsidiaries have filed or caused to be filed all Federal, state, national and other tax returns and reports required to be filed, and have paid all Federal, state, national and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (b) as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect. As of the Effective Date, neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement. | 87Taxes
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This Agreement, the Purchase Agreement and the other agreements and documents referred to herein are 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 and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or in the Purchase Agreement with respect to the rights granted by the Company or any of its Affiliates or the Purchasers or any of their respective Affiliates set forth herein or therein. This Agreement, the Purchase Agreement and the other agreements and documents referred to herein or therein supersede all prior agreements and understandings between the parties with respect to such subject matter. | 38Entire Agreements
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Any notice, demand or request required or permitted to be given by the Company or Adaptive pursuant to the terms of this Agreement shall be in writing and shall be deemed given when delivered personally, one day after being delivered to an overnight courier of national reputation for next day priority delivery, or upon delivery (if prior to 5:00 p.m. recipient ’ s local time on a business day, otherwise on the next business day) by facsimile or electronic mail (with a hard copy to follow by delivery to a national reputation carrier for non-priority delivery), addressed to the parties at the addresses and/or facsimile telephone number/electronic mail address of the parties set forth at the end of this Agreement, or such other address as a party may request by notifying the other in writing. | 65Notices
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This Agreement and the LTIP constitute the entire agreement and understanding of the parties hereto with respect to the matters described herein, and supersede any and all prior and/or contemporaneous agreements and understandings, oral or written, between the parties. | 38Entire Agreements
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In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of this Agreement are not part of the provisions hereof and shall have no force and effect. | 79Severability
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Subject to entry of the PPA and BCA Approval Order, this Agreement will have been, and subject to the entry of the PPA and BCA Approval Order, the Disclosure Statement Order, and the Confirmation Order, each other Transaction Agreement will be, duly executed and delivered by the Company and each of the other Debtors party thereto. Upon entry of the PPA and BCA Approval Order and assuming due and valid execution and delivery hereof by the Commitment Parties, the PPA and BCA Approval Obligations will constitute the valid and legally binding obligations of the Company and, to the extent applicable, the other Debtors, enforceable against the Company and, to the extent applicable, the other Debtors in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar Laws now or hereafter in effect relating to creditor’s rights generally and subject to general principles of equity. Upon entry of the PPA and BCA Approval Order and assuming due and valid execution and delivery of this Agreement and the other Transaction Agreements by the Commitment Parties and, to the extent applicable, any other parties hereof and thereof, each of the obligations of the Company and, to the extent applicable, the other Debtors hereunder and thereunder will constitute the valid and legally binding obligations of the Company and, to the extent applicable, the other Debtors, enforceable against the Company and, to the extent applicable, the other Debtors, in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar Laws now or hereafter in effect relating to creditor’s rights generally and subject to general principles of equity. | 36Enforceability
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Set forth on Exhibit 12.1(f) attached hereto is a list of all material Approvals or Consents required to own, operate or use the Facility or to operate the Business ( “Required Permits” ). All Required Permits are in full force and effect and are not subject to any claim, default, condition, sanction, limitation or penalty. Kindred has delivered to New Operator true, correct and complete copies of the most recent Required Permits necessary or required for the occupancy and operation of the Facility and the Business. | 5Approvals
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Each party's obligations under this Section 3.4 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. | 85Survival
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The term of a SAR shall be determined by the Committee in its sole discretion, but in no event shall the term exceed ten (10) years from the Date of Grant; provided that, each SAR granted in tandem with a Stock Option shall terminate upon the termination or exercise of the related Stock Option. | 89Terms
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To the knowledge of Seller, neither this Agreement nor any other Transaction Document furnished to Buyer by Seller contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading, and the representation and warranties contained in this Article III are true and correct in all material respects on and as of the Closing Date as though made on that date (except with respect to such representations and warranties that address matters only as of a particular date, which are true and correct as of such particular date). | 31Disclosures
|
Seller’s execution, delivery and compliance with, and performance of the terms and provisions of, this Agreement, and the sale of the Asset, will not (i) conflict with or result in any violation of its organizational documents, (ii) conflict with or result in any violation of any provision of any bond, note or other instrument of indebtedness, contract, indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which Seller is a party in its individual capacity, or (iii) violate any Applicable Law relating to Seller or its assets or properties. | 61No Conflicts
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Executive shall serve as the Company’s Vice-President of Finance, with such duties as are customarily associated with such position for a public company. Notwithstanding the foregoing, Executive shall report to and perform the specific duties and responsibilities assigned to him by the Company’s Chief Financial Officer. | 69Positions
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This Voting Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. | 26Counterparts
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This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument. | 26Counterparts
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The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Company shall have the authority to cause the required minimum tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the Grantee a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due. | 86Tax Withholdings
|
Establish, maintain, contribute to or become obligated to contribute to or incur any liability in respect of any ERISA Plan or suffer or permit any member of the Controlled Group to do so. | 39Erisa
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The execution, delivery and performance of this Agreement and performance under the other Transaction Documents and the consummation by Purchaser of the transactions contemplated hereby and thereby or relating hereto or thereto do not and will not (i) result in a violation of Purchaser’s charter documents, bylaws or other organizational documents, if applicable, (ii) conflict with nor constitute a default (or an event which with notice or lapse of time or both would become a default) under any agreement to which Purchaser is a party, nor (iii) result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to Purchaser or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on Purchaser). Purchaser is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or perform under the other Transaction Documents nor to purchase the Securities in accordance with the terms hereof, provided that for purposes of the representation made in this sentence, Purchaser is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein. | 61No Conflicts
|
Promptly upon the reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, the Borrower shall, and shall cause the Subsidiary Guarantors to, (a) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document, 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 the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s Equity Interests to the Liens granted by the Pledge Agreement to the extent required thereunder and (iii) perfect and maintain the validity, effectiveness and priority of the Pledge Agreement and any of the Liens created thereunder. Notwithstanding the foregoing, neither the Borrower nor any subsidiary shall be required to comply with the provisions of clauses (b)(ii) or (iii) of this Section 5.11 during any Collateral Suspension Period. | 45Further Assurances
|
The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee or Qualified Institutional Buyer, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. | 7Assignments
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THIS AMENDMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). | 47Governing Laws
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The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies (not Affiliates of the Borrower) in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and are similarly situated. | 51Insurances
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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. | 96Waiver Of Jury Trials
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This Agreement contains all understandings, promises and representations between Employee and the Released Parties pertaining to the subject matters hereof and supersedes and replaces in full all prior and contemporaneous understandings, agreements, promises, representations and warranties, both written and oral, between Employee and the Released Parties with respect to such subject matters. | 38Entire Agreements
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The Lenders party hereto hereby consent to the release by Administrative Agent of the Mortgaged Property described on Schedule A and all Liens related thereto. The Administrative Agent hereby agrees to execute and to promptly deliver to Borrowers (at the sole expense of the Borrowers), all documents, releases of liens, mortgage satisfactions, discharges, terminations or other release documentation reasonably requested by Borrowers and to take all additional steps as may be necessary to release or terminate its security interests in such Mortgaged Property or to evidence this consent. The parties hereto further agree that from and after the date of this Amendment, unless otherwise agreed to by the Administrative Agent and the Borrowers, the Mortgaged Property described on Schedule A shall be deemed not to be included as Mortgaged Property for purposes of the Credit Agreement and other Loan Documents. | 22Consents
|
If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting the Company’s creditors’ rights and involving a claim under this Note, then the Company shall pay the reasonable costs and expenses incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation, attorneys’ fees and disbursements. | 37Enforcements
|
The Administrative Committee will establish procedures to protect the voting and tender offer rights of the Participants and Beneficiaries and to ensure that the manner in which each Participant or Beneficiary exercises his voting or tender offer rights is confidential with respect to the Administrative Committee and the management of the Company. | 20Confidentiality
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The Board may terminate the Plan at any time. After such termination, no further amounts shall be deferred under the Plan, and the Account balances shall be paid in accordance with Section 5. | 88Terminations
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The Agreement, as amended by this Amendment No. 2 (as so amended, the “Amended Agreement”), contains the entire understanding between the parties hereto with respect to the subject matter hereof and shall supersede and terminate any prior understandings, agreements, obligations or representations, written or oral, relating to the subject matter hereof, including, but not limited to the Agreement as originally executed. The parties agree that the Amended Agreement is the result of negotiations between the parties and that the language of the Amended Agreement shall not be construed for or against any particular party. | 38Entire Agreements
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The Borrower shall furnish a copy of this Guaranty to the Lender at the closing of the Loan. | 31Disclosures
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Each Party (i) irrevocably consents to submit itself to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement and (ii) waives any objection that it may now or hereafter have to the venue or jurisdiction of any such dispute in any such court or that such dispute was brought in an inconvenient forum, and agrees not to plead or claim the same. | 56Jurisdictions
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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, each L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. | 84Successors
|
Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.8. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.8, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.8, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.8 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.8. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. | 20Confidentiality
|
Each Lender may, without the consent of Agent or Borrower, sell participations to one or more Lenders or other entities (but not to any natural person) in all or a portion of such Lender’s rights and obligations under this Agreement and the other Loan Documents; provided that (a) any such sale or participation shall not affect the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle such participant to any rights or privileges under this Agreement or any Loan Documents, including without limitation, rights granted to the Lenders under §§4.8, 4.9, 4.10 and 13, (c) such participation shall not entitle the participant to the right to approve waivers, amendments or modifications, (d) such participant shall have no direct rights against the Borrower, (e) such sale is effected in accordance with all applicable laws, and (f) such participant shall not be a Person controlling, controlled by or under common control with, or which is not otherwise free from influence or control by the Borrower and/or any Guarantor and shall not be a Defaulting Lender or an Affiliate of a Defaulting Lender; provided , however , such Lender may agree with the participant that it will not, without the consent of the participant, agree to (i) increase, or extend the term or extend the time or waive any requirement for the reduction or termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender (other than pursuant to an extension of the Maturity Date pursuant to §2.12), (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon or (v) release any Guarantor or any material Collateral (except as otherwise permitted under this Agreement). Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (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 any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall 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. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. | 67Participations
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Unless otherwise specifically defined in this First Amendment, each term used herein which is defined in the Lease shall have the meaning assigned to such term in the Lease. Each reference to “hereof”, “hereunder”, “herein”, “hereby”, and each other similar reference and each reference to “this Lease”, and each other similar reference contained in the Lease shall from the date of this First Amendment refer to the Lease as amended by this First Amendment. | 29Definitions
|
This Security Joinder Agreement 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 Security Joinder Agreement to produce or account for more than one such counterpart executed by the Joining Grantor. | 26Counterparts
|
This Agreement embodies the entire agreement of the parties hereto respecting the matters within its scope. As of the date hereof, this Agreement supersedes all prior and contemporaneous agreements of the parties hereto that directly or indirectly bear upon the subject matter hereof. Any prior negotiations, correspondence, agree-ments, proposals or understandings relating to the subject matter hereof shall be deemed to be of no force or effect, and the parties to any such other negotiations, commitments, agreements or writings shall have no further rights or obligations thereunder. There are no representations, warranties, or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as expressly set forth herein. | 38Entire Agreements
|
The Company hereby agrees to employ Executive, and Executive hereby accepts such employment and agrees to perform Executive’s duties and responsibilities, in accordance with the terms, conditions and provisions hereinafter set forth. | 35Employment
|
This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when executed and delivered, shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same agreement. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic image scan transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. | 26Counterparts
|
No failure or delay on the part of an Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower or any other Credit Party and an Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which an Agent or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of an Agent or any Lender to any other or further action in any circumstances without notice or demand. | 63No Waivers
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Each of Holdings, Parent Borrower and each of its Subsidiaries has (a) timely filed or caused to be timely filed all federal Tax Returns and all material state, local and foreign Tax Returns or materials required to have been filed by it and all such Tax Returns are true and correct in all material respects and (b) duly and timely paid, collected or remitted or caused to be duly and timely paid, collected or remitted all Taxes (whether or not shown on any Tax Return) due and payable, collectible or remittable by it and all assessments received by it, except Taxes (i) that are being contested in good faith by appropriate proceedings and for which such Person has set aside on its books adequate reserves in accordance with GAAP and (ii) which could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Each of Holdings, Parent Borrower and each of its Subsidiaries has made adequate provision in accordance with GAAP for all Taxes not yet due and payable. Each of Holdings, Parent Borrower and each of its Subsidiaries is unaware of any proposed or pending tax assessments, deficiencies or audits that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. | 87Taxes
|
All capitalized terms in this Notice shall have the meaning assigned to them in this Notice or the Company’s 2010 Stock Incentive Plan. | 29Definitions
|
In consideration of the Termination Benefits, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Executive for himself and for his heirs, executors, administrators, trustees, legal representatives and assigns (collectively, the “ Releasors ”), hereby releases, remises, and acquits the Company and its affiliates and all of their respective past, present and future parent entities, subsidiaries, divisions, affiliates and related business entities, any of their successors and assigns, assets, employee benefit plans or funds, and any of their respective past and/or present directors, officers, fiduciaries, agents, trustees, administrators, managers, supervisors, shareholders, investors, employees, legal representatives, agents, counsel and assigns, whether acting on behalf of the Company or its affiliates or, in their individual capacities (collectively, the “ Releasees ” and each a “ Releasee ”) from any and all claims, known or unknown, which the Releasors have or may have against any Releasee arising on or prior to the date of this Release and any and all liability which any such Releasee may have to the Executive, whether denominated claims, demands, causes of action, obligations, damages or liabilities arising from any and all bases, however denominated, including but not limited to (a) any claim under the Age Discrimination in Employment Act of 1967 (including, without limitation, the Older Workers Benefit Protection Act), the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Civil Rights Act of 1964, the Civil Rights Act of 1991, Section 1981 of the Civil Rights Act of 1866, the Equal Pay Act, the Immigration Reform and Control Act of 1986, the Employee Retirement Income Security Act of 1974, (excluding claims for accrued, vested benefits under any employee benefit or pension plan of the Company, subject to the terms and conditions of such plan and applicable law), the Sarbanes-Oxley Act of 2002, all as amended; (b) any claims under any state statutory or decisional law pertaining to wrongful discharge, discrimination, retaliation, breach of contract, breach of public policy, misrepresentation, fraud or defamation, (c) any and all claims under the Indiana Civil Rights Act and the Indiana wage payment provisions, each as amended; (d) any claim under any other Federal, state, or local law and any workers’ compensation or disability claims under any such laws; and (e) any claim for attorneys’ fees, costs, disbursements and/or the like. This Release includes, without limitation, (i) any and all claims arising from or relating to the Executive’s employment relationship with Company and his service relationship as an officer or director of the Company, or as a result of the termination of such relationships and (ii) any and all matters, transactions or things occurring prior to the Employee’s execution of this Release. The Executive further agrees that the Executive will not file or permit to be filed on the Executive’s behalf any such claim. Notwithstanding the preceding sentence or any other provision of this Release, this Release is not intended to interfere with the Executive’s right to file a charge with the Equal Employment Opportunity Commission (“ EEOC ”) in connection with any claim he believes he may have against any Releasee. However, by executing this Release, the Executive hereby waives the right to recover in any proceeding the Executive may bring before the EEOC or any state human rights commission or in any proceeding brought by the EEOC or any state human rights commission on the Executive’s behalf. This Release is for any relief, no matter how denominated, including, but not limited to, injunctive relief, wages, back pay, front pay, compensatory damages, or punitive damages. This Release shall not apply to (i) the Company’s obligations pursuant to Section 2(b)(vii), Section 4 and Section 5(b) of the Employment Agreement; (ii) the Executive’s rights to indemnification from the Company or rights to be covered under any applicable insurance policy with respect to any liability the Executive incurred or might incur as an employee, officer or director of the Company; or (iii) any right the Executive may have to obtain contribution as permitted by law in the event of entry of judgment against the Executive as a result of any act or failure to act for which the Executive, on the one hand, and Company or any other Releasee, on the other hand, are jointly liable. | 97Waivers
|
No consents or approvals of any public body or authority and no consents or waivers from other parties to leases, licenses, franchises, permits, indentures, agreements or other instruments are (i) required for the lawful consummation of the transactions contemplated hereby, or (ii) necessary in order that the business currently conducted by the Company can be conducted by the Purchaser in the same manner after the Closing as heretofore conducted by the Company, nor will the consummation of the transactions contemplated hereby result in creating, accelerating or increasing any liability of the Company, except where the failure of any of the foregoing would not have a Material Adverse Effect. | 22Consents
|
This Agreement, together with the Exhibits hereto and the other Loan Documents constitutes the entire agreement among the Parties hereto with respect to the subject matter contained in this Agreement, the Exhibits hereto and the other Loan Documents and supersedes all prior agreements, understandings and negotiations between the Parties. | 38Entire Agreements
|
Servicer is solvent and there shall not have been commenced by or against the Servicer any voluntary or involuntary bankruptcy petition, nor has Servicer made an offer or assignment or compromise for the benefit of creditors. | 80Solvency
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