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This Amendment may be executed in counterparts and facsimiles and the counterpart, when properly executed and delivered, will constitute a fully executed complete agreement.
| 26Counterparts
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The parties acknowledge that each party has reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits thereto.
| 23Construction
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The proceeds of the Tranche A Term Loans and the Tranche B Term Loans, together with the proceeds of the Revolving Loans made on the Closing Date and the proceeds of the New Senior Notes will be used by the Borrower on the Closing Date to pay the Transaction Costs, to consummate the Existing Indebtedness Refinancing, to pay the cash portion of the Merger Consideration (as defined in the Purchase Agreement) and for general corporate purposes. The proceeds of the Revolving Loans after the Closing Date will be used for general corporate purposes. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X. Letters of Credit will be issued only to support the operations in the ordinary course of business of the Parent and the Restricted Subsidiaries.
| 92Use Of Proceeds
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This Lease, together with all Appendices, constitutes the entire agreement between the parties. No representations or agreements of any kind have been made by either party which are not contained in this Lease.
| 38Entire Agreements
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No representation or warranty by the Company, Mr. Trimble and/or the Three Controlling Shareholders contained in this Agreement, and no statement contained in the any document, schedule, exhibit, certificate or other instrument delivered or to be delivered by or on behalf of the Company or the Three Controlling Shareholders pursuant to this Agreement, contains or will contain any untrue statement of a material fact or omit or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading. The “WHEREAS” and “NOW THEREFORE” clauses appearing on pages 1 and 2 of this agreement are hereby expressly incorporated into and made a part of this Agreement as if directly contained in the body of this Agreement and are considered representation, warranties, agreements, acknowledgements and/or covenants of the Company.
| 31Disclosures
|
Except as otherwise required by applicable Law or judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) or the rules and regulations of any securities exchange or trading system or any Governmental Authority or pursuant to requests from regulatory agencies having oversight over the Seller and except as otherwise set forth in this Section 4.1, the Seller will, and will cause each of its Affiliates, directors, officers, employees, agents, representatives and similarly situated persons who receive such information to, treat and hold as confidential and not disclose to any Person any and all Confidential Information furnished to it by the Purchaser, as well as the information on the signature page to this Royalty Right Agreement, and to use any such Confidential Information and other information only in connection with this Royalty Right Agreement and the transactions contemplated hereby. Notwithstanding the foregoing, the Seller may disclose such information solely on a need-to-know basis and solely to its members, directors, employees, managers, officers, agents, brokers, advisors, lawyers, bankers, trustees, representatives, investors, co-investors, insurers, insurance brokers, underwriters and financing parties; provided , however , that such Persons shall be informed of the confidential nature of such information and shall be obligated to keep such Confidential Information and other information confidential pursuant to obligations of confidentiality no less onerous than those set forth herein. Except as otherwise required by applicable Law or judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) or the rules and regulations of any securities exchange or trading system or any Governmental Authority or pursuant to requests from regulatory agencies having oversight over the Seller, in no event shall the Purchaser’s name (in any variation) be used in any public announcement or filing, or in any type of mail or electronic distribution intended for an audience that is not solely limited to the Affiliates of the Seller. Except as required by applicable Law or judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) or the rules and regulations of any securities exchange or trading system or any Governmental Authority or pursuant to requests from regulatory agencies having oversight over the Seller, neither the Seller nor any of its Affiliates shall disclose to any Person, or use or include in any public announcement or any public filing, the identity of any shareholders, members, directors or Affiliates of the Purchaser, without the prior written consent of such shareholder, member, director or Affiliate.
| 20Confidentiality
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This Agreement may be executed in one or more counterparts, and by each Party 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. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other means of electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
| 26Counterparts
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Neither the Lenders’ Presentation nor any of the other written reports, financial statements, certificates or other written information furnished by or on behalf of any Loan Party or any of its Restricted Subsidiaries to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document (as modified or supplemented by other written information so furnished) contains any untrue misstatement of material fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Loan Parties represent represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered, it being understood that (a) such projected financial information is not to be viewed as fact and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and such differences may be material and (b) such projected financial information is subject to significant uncertainties and contingencies and no assurance can be given that the projected results will be realized.
| 31Disclosures
|
Receipt by the Lender of certificates of insurance issued on behalf of insurers of the Loan Parties, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Loan Parties, and endorsements naming the Lender as additional insured on liability policies and lender’s loss payee on property and casualty policies.
| 51Insurances
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Since December 31, 2016, there has been no material adverse change in the business, assets, liabilities, financial condition, results of operations or business prospects of the Borrower and its Subsidiaries taken as a whole. Each of the Loan Parties is Solvent.
| 80Solvency
|
The purchase price for ArchCo’s Interest (the “ Put/Call Purchase Price ”) in connection with the Call Option or the Put Option shall be determined in the manner set forth below in this Section 15.3 . For a period of thirty (30) days after the effective date of the Put Election Notice or the Call Election Notice (whichever is applicable, the “ Put/Call Election Notice ”), Bluerock and ArchCo shall negotiate in good faith in an effort to agree upon the fair market value of the Property (“ FMV ”). If Bluerock and ArchCo agree upon the FMV within such thirty (30) day period, then the price so agreed upon shall be the FMV. If Bluerock and ArchCo do not so agree upon the FMV within such thirty (30) day period, then Bluerock and ArchCo shall submit to each other a proposed FMV. If the two proposed FMVs that are submitted by Bluerock and ArchCo are within ten percent (10%) of each other (using the lower number as the percentage base), then the FMV shall be the average of the proposed FMVs of Bluerock and ArchCo. If the proposed FMVs of Bluerock and ArchCo are not within ten percent (10%) of each other, then the FMV shall be determined as described below in Section 15.3(b) .
| 46General
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Each Bank irrevocably hereby appoints JPMorgan to act on its behalf as the Administrative Agent and as the Several L/C Agent under and in connection with this Agreement and authorizes the Administrative Agent and the Several L/C Agent, as applicable, to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent and the Several L/C Agent, as applicable, by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Several L/C Agent and the Banks, and no Obligor shall have rights as a third party beneficiary of any of such provisions.
| 10Authorizations
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The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject hereof. This Agreement may not be amended except by writing executed by authorized representatives of both parties. No representations or statements of any kind made by either party, which are not expressly stated herein, will be binding on such party.
| 38Entire Agreements
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The execution, delivery and performance of this Agreement and all the other agreements required to be executed by the Company at or prior to Closing pursuant to Section 7 (“ Ancillary Agreements ”) have been duly authorized by all necessary action by the Company, and the consummation by the Company of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action. This Agreement and the Ancillary Agreements have been duly executed and delivered by the Company. This Agreement and the Ancillary Agreements, assuming due authorization, execution and delivery by Purchaser and Seller, constitutes the valid and binding obligations of the Company, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and equitable remedies.
| 10Authorizations
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The Committee has the right to amend, alter, suspend, discontinue or cancel the RSUs or Cash Units, prospectively or retroactively; provided, that , no such amendment shall adversely affect the Grantee’s material rights under this Agreement without the Grantee’s consent.
| 2Amendments
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You are not required to pay for the Restricted Stock or the Shares underlying the Restricted Stock granted to you pursuant to this Agreement.
| 68Payments
|
Wealth Generators is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Utah, and is entitled to carry on its business as and in the places where such business is now conducted. Wealth Generators is qualified to do business as a foreign corporation in each jurisdiction, if any, in which its business requires such qualification. Wealth Generators does not own any subsidiaries.
| 66Organizations
|
Any Lender may at any time, without the consent of, or notice to, the Borrower or the Agent, sell participations to any Person (other than an Ineligible Institution) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment, Swingline Exposure and/or the Revolving Advances (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Agent, the Lenders and the Issuing Banks shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, any Obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, any Obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.
| 67Participations
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Orion shall pay Executive a Base Salary at the annual rate set forth above, effective as of June 1, 2017, payable in regular installments in accordance with the Company’s usual payroll practices. Executive shall be entitled to such increases in Executive’s base salary, if any, as may be determined from time to time by the Board.
| 11Base Salary
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This Agreement shall be governed by and construed in accordance with the applicable law pertaining in the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5–1401 of the General Obligations Law of the State of New York, as amended (as and to the extent applicable), and other applicable law.
| 47Governing Laws
|
All costs and expenses including reasonable attorneys’ fees (including the allocated costs of in house counsel) and disbursements incurred by Agent on its behalf or on behalf of Lenders (a) in all efforts made to enforce payment of any Obligation or effect collection of any Collateral, or (b) in connection with the entering into, modification, amendment, administration and enforcement of this Agreement or any consents or waivers hereunder and all related agreements, documents and instruments, or (c) in instituting, maintaining, preserving, enforcing and foreclosing on Agent’s security interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of Agent’s or any Lender’s rights hereunder and under all related agreements, documents and instruments, whether through judicial proceedings or otherwise, or (d) in defending or prosecuting any actions or proceedings arising out of or relating to Agent’s or any Lender’s transactions with Credit Parties or any Guarantor or (e) in connection with any advice given to Agent or any Lender with respect to its rights and obligations under this Agreement and all related agreements, documents and instruments, may be charged to Borrowers’ Account and shall be part of the Obligations.
| 41Expenses
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A Participant who has been absent for more than 52 weeks on account of Disability (but who has not experienced a Severance from Employment) and whose Disability continues through the date of withdrawal under this Section 9.9 may withdraw all or any portion of his or her Account, other than the Self-Managed Account, at any time by submitting a request for withdrawal in accordance with the procedures adopted by the Committee for this purpose. Such withdrawal shall be subject to any additional restrictions, uniformly applied with respect to Participants similarly situated, as are prescribed by the Committee regarding the frequency and minimum amount of such withdrawal.
| 30Disability
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THIS AGREEMENT, AND ALL ACTIONS, CAUSES OF ACTION OR CLAIMS OF ANY KIND (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATED TO THIS AGREEMENT, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF; PROVIDED, THE INTERPRETATION OF (I) AN “ACQUIRED BUSINESS MATERIAL ADVERSE EFFECT” AND WHETHER AN “ACQUIRED BUSINESS MATERIAL ADVERSE EFFECT” HAS OCCURRED, (II) THE ACCURACY OF ANY REPRESENTATION MADE BY THE ACQUIRED BUSINESS AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF THE BORROWER (OR AN AFFILIATE) HAVE THE RIGHT (WITHOUT REGARD TO ANY NOTICE REQUIREMENT) TO TERMINATE THE BORROWER’S (OR SUCH AFFILIATE’S OBLIGATIONS (OR TO REFUSE TO CONSUMMATE THE TRANSACTIONS) UNDER THE ACQUISITION AGREEMENT AND (III) WHETHER THE TRANSACTIONS HAVE BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT, IN EACH CASE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE; PROVIDED, FURTHER, THAT, WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE ACQUISITION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY AND WHICH DO NOT INVOLVE ANY CLAIMS BY OR AGAINST THE ADMINISTRATIVE AGENT OR THE LENDERS OR TO WHICH THE ADMINISTRATIVE AGENT OR THE LENDERS ARE NOT OTHERWISE A PARTY, THIS SENTENCE SHALL NOT OVERRIDE ANY JURISDICTION PROVISIONS SET FORTH IN THE ACQUISITION AGREEMENT.
| 47Governing Laws
|
Except as otherwise required by law (including securities laws and regulations) and the regulations of any national stock exchange, so long as this Agreement is in effect, the Stockholder shall not issue or cause the publication of any press release or other public announcement with respect to, or otherwise make any public statement concerning, the transactions contemplated by this Agreement or the Merger Agreement, without the consent of Parent, which consent shall not be unreasonably withheld.
| 71Publicity
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This Agreement may be executed in multiple counterparts, each of which constitutes an original but all of which taken together constitute one and the same Agreement.
| 26Counterparts
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The Company shall reimburse Alden for its reasonable, documented out-of-pocket fees and expenses (including legal expenses) incurred in connection with Alden’s negotiation and execution of this Agreement, including its Schedule 13D Amendment, up to a maximum amount of $100,000 in the aggregate.
| 41Expenses
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This Agreement shall terminate without further action at any time before the Closing upon termination of the Business Combination Agreement. If terminated, no Party shall have any Liability of any kind to the other Party or any other Person on account of this Agreement.
| 88Terminations
|
Sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates with a fair market value in excess of $100,000 for any transaction or series of related transactions, except (a) in the ordinary course of business at prices and on terms and conditions taken as a whole substantially at least as favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and its Subsidiaries or between the Subsidiaries, in each case to the extent permitted by Section 7.4 , (c) any Restricted Payment permitted by Section 7.5 , (d) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the payment of reasonable fees and reimbursement of out-of-pocket expenses to directors of the Borrower or any Subsidiary in an aggregate amount not to exceed $2,000,000 in any fiscal year of the Borrower, (e) compensation (including bonuses and equity or other consideration) and employee benefit arrangements paid to, indemnities provided for the benefit of, and employment and severance arrangements entered into with, directors, officers, managers or employees of the Borrower or the Subsidiaries in the ordinary course of business, including in connection with the Funding Date Acquisition and any other transaction permitted hereunder; (f) any issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, employee stock options and employee stock ownership plans, and (h) the Funding Date Acquisition.
| 91Transactions With Affiliates
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Sell, transfer, or lease any Collateral, except for the sale or lease of inventory in the ordinary course of business.
| 77Sales
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(a) Except as permitted under Section 6.16, form any Subsidiary or (b) enter into any partnership, joint venture or similar arrangement.
| 83Subsidiaries
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All representations and warranties contained in this Agreement shall be true and correct in every material respect as of the date of closing of the Loan.
| 76Representations
|
No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company or the Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Purchaser.
| 15Brokers
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Capitalized terms used herein and not defined shall have the meanings ascribed to them in the Restated Note. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The terms of this Amendment shall be construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to choice of law provisions.
| 46General
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The Buyer and Seller agree to the additional terms and conditions set forth in Exhibit B .
| 89Terms
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Sections 5, 6, 7, 8 and 17 hereof shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period.
| 85Survival
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Effective upon the Closing under the Business Combination Agreement, the Company hereby assigns and conveys to Avenue all of Company’s right, title and interest in and to the Boulevard IP and any and all goodwill included with the Boulevard IP. The Company agrees not to use any of the Boulevard IP following the Closing.
| 7Assignments
|
Each Grantor hereby irrevocably submits to the jurisdiction of any Texas state or federal court sitting in Houston, Texas in any action or proceeding arising out of or relating to this Security Agreement or the other Credit Documents, and each Grantor hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such court. Each Credit Party hereby unconditionally and irrevocably waives, to the fullest extent it may effectively do so, any right it may have to the defense of an inconvenient forum to the maintenance of such action or proceeding. Each Grantor hereby agrees that service of copies of the summons and complaint and any other process which may be served in any such action or proceeding may be made by mailing or delivering a copy of such process to such Grantor at its address set forth in this supplement. Each Grantor hereby agrees that a final judgment in any such action 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 Section shall affect the rights of any Lender to serve legal process in any other manner permitted by the law or affect the right of any Lender to bring any action or proceeding against any Grantor or its Property in the courts of any other jurisdiction.
| 82Submission To Jurisdiction
|
Employee acknowledges and agrees that: (a) Employee has been given at least twenty-one (21) days during which to review and consider the provisions of this Agreement, although he or she may at his or her discretion, knowingly and voluntarily, sign and return the Agreement at any earlier time, but Employee may not sign and return the Agreement until on or after his or her last day of employment with the Company; (b) modification of this Agreement does not restart this twenty-one (21)-day consideration period; (c) Employee is waiving rights or claims which may be waived by law in exchange for consideration that is not otherwise due to Employee, including claims and rights under the Age Discrimination in Employment Act of 1967, as amended (the “ ADEA ”), and as otherwise described in this Agreement; (d) rights or claims that may arise after the date this Agreement is executed, including those arising under the ADEA, are not waived by this Agreement; (e) at any time within seven (7) days after signing this Agreement, Employee may revoke this Agreement; and (f) this Agreement is not enforceable until the revocation period has passed without a revocation.
| 33Effective Dates
|
The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws; Anti-Money Laundering Laws and applicable Sanctions.
| 78Sanctions
|
Employee acknowledges that during employment with the Company, Employee had access to the Company’s confidential and proprietary information (collectively, “Confidential Information”). Employee agrees to continue to abide by the terms of any code of conduct, confidentiality agreement, agreement that contains confidentiality provisions, or agreement relating to the assignment of technology developed or conceived during his employment that he previously signed, which agreement(s) Employee acknowledges will survive the termination of his employment. Employee agrees to not disclose or impart to any other person, directly or indirectly, any Confidential Information acquired during his employment and will not remove any Confidential Information from any of the Company’s premises. Employee agrees to immediately return to the Company or confirm the destruction of any Confidential Information that he may have in his possession, including any copies, regardless of the form or media of such Confidential Information.
| 20Confidentiality
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Not establish or acquire a Subsidiary.
| 83Subsidiaries
|
This Plan shall be binding upon and inure to the benefit of each Participant (and such Participant’s personal representatives and heirs) and the Company and any organization which succeeds to substantially all of the business or assets of the Company, whether by means of merger, consolidation, acquisition of all or substantially all of the assets of the Company or otherwise, including, without limitation, as a result of a Change of Control or by operation of law. This Plan shall inure to the benefit of and be enforceable by each Participant’ personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If a Participant should die while any amount would still be payable hereunder if such Participant had continued to live, all such amounts, unless otherwise provided herein (for example, Legal Reimbursements are payable only during the Participant’s lifetime), shall be paid in accordance with the terms of this Plan to such Participant’s devisee, legatee or other designee or, if there is no such designee, to such Participant’s estate.
| 36Enforceability
|
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before April 12, 2017; provided , however , that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
| 88Terminations
|
This Agreement shall not be effective until seven (7) days after Holly signs it and returns it to Whiting Petroleum’s Vice President, General Counsel and Corporate Secretary. During that seven (7)-day period, Holly may revoke his acceptance of this Agreement by delivering to Whiting Petroleum’s Vice President, General Counsel and Corporate Secretary a written statement stating he wishes to revoke this Agreement or not be bound by it.
| 33Effective Dates
|
Upon termination of the Security Agreement, the Administrative Agent shall execute, acknowledge, and deliver to the Grantors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Copyrights under this Copyright Security Agreement in accordance with Section 11.4 of the Security Agreement.
| 88Terminations
|
The provisions of this Agreement related to your basic terms and conditions of employment will be governed by and construed in accordance with the laws of Switzerland. However, all provisions of this Agreement related to your termination of employment under Appendix II shall be governed by the laws of the Commonwealth of Pennsylvania without reference to principles of conflict of laws. The place of jurisdiction for all disputes arising out of or in connection with this Agreement, including disputes on its conclusion, binding effect, amendment and termination, shall be either the domicile of the Company or the employee’s ordinary place of work for the Company.
| 56Jurisdictions
|
Each Lender shall indemnify, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that the applicable Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the applicable Borrower to do so), (y) the Administrative Agent and the Borrowers, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrowers, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (e).
| 50Indemnity
|
If the Participant as an employee, non-employee member of the Board, consultant or independent advisor ceases to provide services to the Company or one of its Subsidiaries by reason of disability (as defined in section 22(e)(3) of the Code), this Option shall thereon terminate, except that this Option may be exercised by the Participant, to the extent otherwise then exercisable, for a period of six months from the date of termination of the provision of services or until the Expiration Date, whichever period is shorter.
| 30Disability
|
The Borrower shall: (i) default in the payment when due of any principal of any of the Loans; or (ii) default, and such default shall continue for five (5) or more Business Days, in the payment when due of any interest on the Loans or of any fees or other amounts owing hereunder, under any of the other Loan Documents or in connection herewith or therewith.
| 68Payments
|
The Borrower and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves in conformity with GAAP or (b) to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
| 87Taxes
|
Notwithstanding anything in the Lease (including this Work Letter) to the contrary, Tenant acknowledges and agrees that Landlord shall have the right to terminate the Lease by giving Tenant written notice of the exercise of such option (in which event the Lease shall cease and terminate as of the date of such notice) in the event Landlord is unable to obtain the Permits for the Tenant Improvements within one hundred eighty (180) days from the date of the full execution and delivery of the Lease by Landlord and Tenant. Upon such termination, the parties shall be relieved of all further obligations under the Lease except for those obligations under the Lease which expressly survive the expiration or sooner termination of the Lease.
| 88Terminations
|
Executive represents and warrants to the Company that (a) Executive is under no contractual or other restriction or obligation which is inconsistent with the execution of this Agreement, the performance of his duties hereunder, or the other rights of the Company hereunder and (b) Executive is under no physical or mental disability that would hinder his performance of duties under this Agreement.
| 76Representations
|
This Agreement and the Director Agreements constitute the entire agreement among the parties with respect to the subject matter hereof. They supersede any prior agreement or understanding among them, and they may not be modified or amended in any manner other than by an instrument in writing signed by the parties hereto or thereto, or their respective successors or assigns, or otherwise as provided herein or therein.
| 38Entire Agreements
|
The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement shall not prejudice or affect its rights hereunder. No waiver by either party shall operate as a waiver of any subsequent or continuing breach, and no waiver shall be effective unless made in writing.
| 63No Waivers
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THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The jurisdiction and waiver of right to trial by jury provisions in Sections 10.15 and 10.16 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
| 47Governing Laws
|
Any question or dispute regarding the administration or interpretation of the Notice or this Option Agreement shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator shall be final and binding on all persons.
| 55Interpretations
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For purposes of this Agreement, “Change In Control” shall have the same meaning as set forth in the Advance Auto Parts 2014 Long-Term Incentive Plan, effective May 14, 2014 (“2014 LTIP” or “Advance’s 2014 LTIP”).
| 17Change In Control
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The Borrowers shall pay to the Agent, for its own account, the agency fees set forth in the Fee Letter at the times specified therein.
| 42Fees
|
Each Investor, on behalf of itself, severally represents and warrants to the Company that (a) as of the date hereof, such Investor beneficially owns, directly or indirectly, only the number of shares of Common Stock as described opposite its name on Exhibit B and Exhibit B includes all Affiliates and Associates of any Investors that own any securities of the Company beneficially or of record and reflects all shares of Common Stock in which the Investors have any interest or right to acquire, whether through derivative securities, voting agreements or otherwise, (b) this Agreement has been duly and validly authorized, executed and delivered by such Investor, and constitutes a valid and binding obligation and agreement of such Investor, enforceable against such Investor in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles, (c) such Investor has the authority to execute this Agreement on behalf of itself and the applicable Investor associated with that signatory’s name, and to bind such Investor to the terms hereof, (d) each of the Investors shall use its commercially reasonable efforts to cause its respective Affiliates and Associates to comply with the terms of this Agreement and (e) the execution, delivery and performance of this Agreement by such Investor does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to it, or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract, commitment, understanding or arrangement to which such member is a party or by which it is bound. The Investor Group acknowledges the Shareholder Rights Plan (the “ Rights Plan ”) with Wells Fargo Bank, N.A., a national banking association, and that under the Rights Plan, any Investor must seek a waiver from the Company under the Rights Plan prior to acquiring beneficial ownership of 4.99% or more of the Common Stock outstanding, subject to certain exceptions under the Rights Plan.
| 76Representations
|
The Plan is intended to constitute a “top hat” plan under ERISA for the benefit of a select group of highly compensated or management employees.
| 39Erisa
|
This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.
| 26Counterparts
|
All notices and other communications under this Agreement shall be in writing and shall be given in person or by either personal delivery, facsimile with confirmation of receipt, overnight delivery, or first class mail, certified or registered with return receipt requested, with postal or delivery charges prepaid, and shall be deemed to have been duly given when delivered personally, or three days after mailing first class, certified or registered with return receipt requested, (i) if to the Company, to the Company’s headquarters, attention to the Executive Vice President, General Counsel & Corporate Secretary of the Company, and (ii) if to Executive, to Executive’s address on file in the Company’s records.
| 65Notices
|
Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property as permitted pursuant to clause (xix) of the definition of “Special Purpose Entity” set forth in Section 1.1 hereof and (b) obligations under the Loan Documents.
| 1Agreements
|
Servicer will use commercially reasonable efforts to ensure that no Collections or other funds used to repay any obligation under the Transaction Documents (i) constitute the property of, or are beneficially owned, directly or indirectly, by any Sanctioned Person; (ii) are derived from any transactions or business with any Sanctioned Person or Sanctioned Country. Servicer has taken, and during the term of this Agreement shall take, reasonable measures to ensure compliance with Sanctions Laws and Anti-Money Laundering Laws. During the term of this Agreement, Servicer shall not become a Sanctioned Person.
| 78Sanctions
|
All notices, requests, demands, and all other communications required or permitted by either party to the other party by this Agreement (including, without limitation, any notice of termination of employment and any notice of an intention to arbitrate) shall be in writing and shall be deemed to have been duly given when delivered personally or received by certified or registered mail, return receipt requested, postage prepaid, at the address of the other party, as first written above (directed to the attention of the Board of Directors and Corporate Secretary in the case of the Company). Either party hereto may change its address for purposes of this Section 8 by giving 15 days prior notice to the other party hereto.
| 65Notices
|
Borrower shall apply the proceeds of (i) any Revolving Advances made on the Original Closing Date to pay closing costs and expenses associated with this transaction and to refinancing any Existing Loans and (ii) Revolving Advances made on and after the Original Closing Date to provide for their respective working capital needs and to fund loans by Borrower to its Mortgagor Customers for the purchase or refinance of Mortgaged Property.
| 92Use Of Proceeds
|
In the event of a merger or a Change in Control, each outstanding Award will be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation refuses to assume or substitute for the Award, the Participant will fully vest in and have the right to exercise all his or her outstanding Options and Stock Appreciation Rights, including Shares as to which it would not otherwise be vested or exercisable, all restrictions on Restricted Stock will lapse, all outstanding Restricted Stock Units will fully vest, and, with respect to Awards with performance-based vesting, all Performance Goals or other vesting criteria will be deemed achieved at 100% of target level and all other terms and conditions met unless otherwise expressly provided for in the Award Agreement. If an Award becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator will notify the Participant in writing or electronically that the Award will be fully vested and exercisable for a period of time determined by the Administrator, and the Award will terminate upon the expiration of such period. For the purposes of this paragraph, the Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other securities or property) received in the merger or sale of assets by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Unit, Performance Unit or Performance Share, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control.
| 17Change In Control
|
Pursuant to the Second Amended and Restated Partnership Agreement, there was created a class of Limited Partner Units designated as “Series A Convertible Preferred Units” (the “ Series A Preferred Units ”), with the designations, preferences and relative, participating, optional or other special rights, powers and duties as set forth in this Section 5.14 and elsewhere in this Agreement.
| 46General
|
Upon the occurrence of a Change in Control (as defined below), the Participant's accumulated Contributions and any interest (if applicable) will be returned to the Participant as soon as practicable, the Purchase Rights will be cancelled and the Offering will terminate. If a Change in Control is pending, the Committee may delay the commencement of an Offering.
| 17Change In Control
|
The Assignor hereby assigns and sells to the Assignee all of the rights and obligations of the Assignor as a Lender under the Credit Agreement to the extent of the Assigned Amount, and the Assignee hereby accepts such assignment from the Assignor and assumes all of the obligations of the Assignor under the Credit Agreement to the extent of the Assigned Amount, including the purchase from the Assignor of the corresponding portion of the principal amount of the Loans made by the Assignor outstanding at the date hereof. Upon the execution and delivery hereof by the Assignor and the Assignee [and the Company] and the payment of the amounts specified in Section 3 required to be paid on the date hereof the Assignee shall, as of the date hereof, succeed to the rights and be obligated to perform the obligations of a Lender under the Credit Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced by a like amount and the Assignor released from its obligations under the Credit Agreement to the extent such obligations have been assumed by the Assignee. The assignment provided for herein shall be without recourse to the Assignor.
| 7Assignments
|
The Company shall (a) by 9:30 a.m. (New York City time) on October 12, 2017, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b), to the extent reasonably practical.
| 71Publicity
|
This Letter Agreement may not be amended or otherwise modified without the prior written consent of CF Corp and Sponsor. Any such amendment shall be subject to Seller’s written consent to the extent required under the Share Purchase Agreement. This Letter Agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between Sponsor or any of its Affiliates, on the one hand, and CF Corp or any of its Affiliates, on the other, with respect to the transactions contemplated hereby (other than the Share Purchase Agreement, the Information Letter Agreement by and among Sponsor, CF Corp and Seller (the “ Blackstone Information Letter Agreement ”), the Equity Commitment Letter between CF Corp and GSO Fund, the Equity Commitment Letter among Sponsor, Fidelity National Financial, Inc. and CF Corp, the Forward Purchase Agreement among CF Corp, CFS Holdings (Cayman), L.P. and CF Capital Growth, LLC and the other agreements expressly referred to herein or therein as being entered into in connection with the Share Purchase Agreement).
| 38Entire Agreements
|
This Guaranty shall terminate at such time as the Debt has been indefeasibly paid in full, and there has expired the maximum possible period thereafter during which any payment made by Borrower or others to Lender with respect to the Loan could be deemed a preference under the United States Bankruptcy Code.
| 88Terminations
|
Capitalized terms used but not defined herein shall have the meanings given to them in the Existing Credit Agreement. The rules of interpretation set forth in Section 1.02 of the Existing Credit Agreement are hereby incorporated by reference herein, mutatis mutandis .
| 28Defined Terms
|
In order to induce the Company to enter into this Agreement, Executive represents and warrants to the Company, to the best of his knowledge after the review of his personnel files, that: (a) the execution and delivery of this Agreement by Executive and the performance of his obligations hereunder will not violate or be in conflict with any fiduciary or other duty, instrument, agreement, document, arrangement or other understanding to which Executive is a party or by which he is or may be bound or subject; and (b) Executive is not a party to any instrument, agreement, document, arrangement or other understanding with any person (other than the Company) requiring or restricting the use or disclosure of any confidential information or the provision of any employment, consulting or other services.
| 76Representations
|
The obligations of Borrower contained in Sections 4.05 , 4.06 , 4.07 , Article V , Article XI and this Section 12.16 shall survive the repayment of the Loans and the cancellation of the Note and the termination of the other obligations of Borrower hereunder.
| 85Survival
|
Each Seller has timely filed all Tax Returns required to be filed by it and required to be filed with respect to the Assigned Assets or the Business, and all such Tax Returns are accurate, complete and correct. Each Seller has paid all Taxes required to be paid by it and required to be paid with respect to the Assigned Assets and the Business (whether or not shown on any Tax Return described in the preceding sentence). There is no Tax audit or examination now pending or threatened with respect to either Seller or the Assigned Assets. No claim has ever been made in writing by any Governmental Authority in a jurisdiction where either Seller does not pay Taxes or file Tax Returns that such Seller is or may be subject to Tax by that jurisdiction. Neither Seller has requested or entered into an agreement providing for any extension of time within which to file any Tax Return, make any Tax election, pay any Taxes or pursuant to which any Governmental Authority may assess Taxes. All Taxes which the Seller were or are required by applicable Law to withhold or collect have been and are being withheld or collected by them and have been paid over to the proper Governmental Authority or, if not yet due, are being held by the Sellers for payment. The Sellers have collected and remitted sales, use, value added and similar Taxes applicable in connection with the Assigned Assets and the operation of the Business. Neither Seller has ever entered into a “closing agreement” as defined in Section 7121 of the Code. There is no lien for Taxes upon any of the Assigned Assets other than liens for Taxes that are not yet due and payable. The Assigned Assets do not include any (a) “United States real property interests” for purposes of Section 897 of the Code or (b) equity interests in any other Person (under Tax or non-Tax principles). For purposes of this Section 3.8 , each reference to a Seller includes any Person that was liquidated into, merged with or otherwise a predecessor to, such Seller.
| 87Taxes
|
This Agreement is governed by and is to be construed in accordance with the laws of the State of Nevada without giving effect to any provisions thereof relating to conflict of laws.
| 4Applicable Laws
|
Except as otherwise permitted under Section 6.3 or Section 6.4, at all times (a) maintain and preserve in full force and effect its existence (including being in good standing in its jurisdiction of formation) and (b) maintain all its rights and franchises, licenses and permits, except where the failure to maintain any such rights and franchises, or licenses and permits, could not reasonably be expected to result in a Material Adverse Change.
| 40Existence
|
If, at least one month after the Grant Date but prior to the Vesting Date, the Grantee’s employment is terminated due to the Grantee’s Disability, a Prorated Number of RSUs shall become Vested RSUs (as determined in Section 6(f) below). The Company shall settle any RSUs that become Vested RSUs under this Section 6(b) by delivering to the Grantee one Share for each Vested RSU as soon as administratively practicable after the last day of the Performance Period, but in any event, by March 15th of the year following the year in which the Performance Period ends.
| 30Disability
|
This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Amendment.
| 26Counterparts
|
Section headings in this Agreement are for convenience only and shall be given no effect in the construction or interpretation of this Agreement.
| 48Headings
|
The Company has all material franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of their respective business as now being conducted by it unless the failure to possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
| 19Compliance With Laws
|
This Amendment shall be effective automatically and without necessity of any further action by Borrower, Administrative Agent or Lenders when counterparts hereof have been executed by Parent, Borrower and Lenders.
| 34Effectiveness
|
The parties represent and warrant to each other that there are no brokers involved in this transaction other than Lincoln Property company (“ LPC ”). Landlord shall be responsible for the payment of all fees and commissions to LPC. Except as to LPC which Landlord agrees to pay, each party agrees to indemnify and hold harmless the other party for any claims for any costs, fees or commissions by and broker claiming by or through or under the other party, including but not limited to attorney’s fees incurred in the defense of such claims.
| 15Brokers
|
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
| 47Governing Laws
|
This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to principles of conflict of laws.
| 47Governing Laws
|
In the event that this Lease is terminated under any of the provisions contained in Section 8.1 or shall be otherwise terminated for breach of any obligation of Tenant, Tenant covenants to pay punctually to Landlord all the sums and to perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent obtained by Landlord by reletting the Premises, after deducting all Landlord’s reasonable expense in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Premises for such reletting (excluding the cost of any buildout incurred for any new tenant), it being agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof, for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term and may grant such concessions and free rent as Landlord in its sole judgment considers advisable or necessary to relet the same and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary to relet the same, and no action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant’s liability as aforesaid. In lieu of the foregoing, Landlord may elect to recover, and Tenant shall pay forthwith to Landlord, as compensation, the excess of the total rent reserved for the residue of the Term over the rental value of the Premises for said residue of the Term discounted at the then discount rate of the Federal Reserve Bank of Boston. In calculating the rent reserved there shall be included, in addition to the Fixed Rent and Additional Rent, the value of all other considerations agreed to be paid or performed by Tenant for said residue. Landlord agrees to use commercially reasonable efforts to mitigate damages.
| 75Remedies
|
The validity, construction and effect of the Plan or any Award, and any rules and regulations relating to the Plan or any Award, shall be determined in accordance with the laws of the State of Minnesota.
| 47Governing Laws
|
This letter agreement is solely for the benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this letter agreement.
| 7Assignments
|
All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law in conflict with law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.
| 47Governing Laws
|
Executive may not assign any of Executive's rights or obligations hereunder without the written consent of the Company. The Company may assign this Agreement without the consent of Executive. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In connection with a Change of Control, the Company shall cause a successor to the Company to explicitly assume and agree to be bound by this Agreement and any such successor shall explicitly assume and agree to be bound by this Agreement.
| 7Assignments
|
Neither this Agreement nor any certificate, instrument or written statement furnished or made to Purchaser by or on behalf of the Seller or the Company in connection with the transactions contemplated by this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein in light of the circumstances under which they were made not misleading.
| 31Disclosures
|
In the event that a Third Party shall make any claim, give notice, or bring any suit or other inter parties proceeding against Bellicum or Adaptimmune, or any of their respective Affiliates, subcontractors or customers, for infringement or misappropriation of any Intellectual Property Rights with respect to the research, development, making, using, selling, offering for sale, import or export of any Candidate or Therapy or with respect to any Selected Target (" Third Party Infringement Claim "), in each case, the Party receiving notice of a Third Party Infringement Claim shall promptly notify the other Party in writing and provide all evidence in its possession pertaining to the claim or suit that it is entitled to disclose.
| 65Notices
|
Section headings used in this Security Agreement are for convenience of reference only and shall not affect the construction of this Security Agreement.
| 48Headings
|
The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Fee Letter.
| 48Headings
|
Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the United Stated Federal courts located in the Borough of Manhattan and the courts of the State of New York located in the Borough of Manhattan.
| 21Consent To Jurisdiction
|
This Agreement shall terminate upon the earlier of (i) the tenth anniversary of the date of this Agreement or (ii) the date as of which (A) all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder) or (B) the Holders of all Registrable Securities are permitted to sell the Registrable Securities under Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale. The provisions of Section 3.5 and Article IV shall survive any termination.
| 89Terms
|
To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by an Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the amount of the LC Exposure shall not exceed $10,000,000, (ii) with respect to each Issuing Bank, (x) the aggregate undrawn amount of all outstanding Letters of Credit issued by such Issuing Bank at such time plus (y) the aggregate amount of all LC Disbursements made by such Issuing Bank that have not yet been reimbursed by or on behalf of the Borrower at such time shall not exceed the Letter of Credit Commitment of such Issuing Bank, (iii) no Revolving Lender’s Revolving Credit Exposure shall exceed its Revolving Commitment, and (iv) the Total Revolving Credit Exposure shall not exceed the Aggregate Revolving Commitment. The Borrower may, at any time and from time to time, increase or reduce the Letter of Credit Commitment of any Issuing Bank pursuant to the definition of Letter of Credit Commitment; provided that the Borrower shall not reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such reduction, the conditions set forth in clauses (i) through (iv) above shall not be satisfied.
| 2Amendments
|
Company shall reimburse Contractor for reasonable expenses incurred in connection with Contractor’s performance of services under this Agreement, provided that the expenses are approved in advance by the Chief Executive Officer of the Company and Contractor promptly provides documentation satisfactory to Company to support Contractor’s request for reimbursement. Mileage reimbursement for travel by automobile shall be at the applicable legal rate established by the Internal Revenue Service.
| 41Expenses
|
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