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All obligations of the Company under the EQT Plan and this Agreement, or of EQM Services under the EQM Plan and this Agreement, with respect to the Performance Awards, shall be binding on any successor to the Company or EQM Services, as the case may be, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company or EQM Services, as the case may be.
| 84Successors
|
In reliance on the representations, warranties, covenants and agreements contained in this Fourth Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, the Credit Agreement shall be amended effective as of the Fourth Amendment Effective Date in the manner provided in this Section 2 .
| 2Amendments
|
The PSs shall be subject to adjustment in accordance with the Plan.
| 0Adjustments
|
At its cost and expense, upon request of the Lender, duly execute and deliver, or cause to be duly executed and delivered, to the Lender such further instruments and do and cause to be done such further acts as may be reasonably necessary or proper in the opinion of the Lender or its counsel to carry out more effectively the provisions and purposes of the Credit Documents.
| 45Further Assurances
|
All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. If and to the extent the Administrative Agent shall not make such payments to a Lender when due as set forth in the preceding sentence, then such unpaid amounts shall accrue interest, payable by the Administrative Agent, at the Federal Funds Rate from the due date until (but not including) the date on which the Administrative Agent makes such payments to such Lender. All payments received by the Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
| 46General
|
Notwithstanding any provision of this Lease to the contrary, the parties acknowledge and agree that, all claims against, and liabilities of, Lessee or Lessor which relate to acts or omissions prior to the date of expiration or termination of this Lease, and the covenants and obligations under this Lease which expressly relate to periods after the expiration or earlier termination of Lessee’s tenancy under this Lease, including, without limitation, all indemnification obligations and those covenants and obligations described in Sections 8.1 (final sentence only), 8.2(c) , 8.3 (final sentence only), 16.2 , 38.4 , 38.5 , 40.3 , 40.4 and Articles XVIII , XIX and XXII , shall survive such expiration or earlier termination.
| 85Survival
|
As of the Effective Date, the Company will pay Executive an annual salary of $555,000 as compensation for his services (such annual salary, as is then effective, to be referred to herein as “Base Salary”). The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices and be subject to the usual, required withholdings.
| 11Base Salary
|
All warranties and guaranties and other similar rights against third parties held by Seller with respect to any Improvements or Personal Property, to the extent the same are transferable, or, if any consent is necessary to effectuate such a transfer, upon Purchaser’s prior request, Seller shall reasonably cooperate at no liability to Seller in obtaining such consent at Purchaser’s sole cost and expense. All transferable governmental deposits, utility deposits, and escrow deposits held by Existing Lender (defined below) that are transferred to Purchaser at Closing shall be credited to Seller and charged to Purchaser.
| 98Warranties
|
THE PARTIES TO THIS AGREEMENT DO NOT MAKE ANY REPRESENTATION OR WARRANTY EXCEPT FOR THEIR RESPECTIVE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8, AND EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, THE PARTIES DO NOT GIVE THE OTHER PARTIES ANY ASSURANCES (A) REGARDING THE PATENTABILITY OF ANY CLAIMED INVENTION IN, OR THE VALIDITY OF, ANY PATENT OR PATENT APPLICATION OR (B) THAT MANUFACTURE, USE, SALE, OFFERING FOR SALE, IMPORTATION, EXPORTATION OR OTHER DISTRIBUTION OF ANY PRODUCT OR METHOD DISCLOSED OR CLAIMED IN ANY PATENT OR PATENT APPLICATION WILL NOT CONSTITUTE AN INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHER PERSONS. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 8 HEREOF, THE PATENTS AND PATENT APPLICATIONS ARE SOLD “ AS IS ” WITHOUT ANY FURTHER REPRESENTATION OR WARRANTY.
| 98Warranties
|
Capitalized terms used throughout this Amendment and not defined herein have the meanings ascribed to them in the Gathering Agreement.
| 29Definitions
|
Except as otherwise provided in Section 2(b), any unvested shares of Restricted Stock will be forfeited immediately, automatically and without consideration upon a termination of the Participant’s Service for any reason. Without limiting the generality of the foregoing, the shares of Restricted Stock and any vested Shares (and any resulting proceeds) will continue to be subject to Section 13 of the Plan.
| 44Forfeitures
|
Each Party shall be entitled to seek, in addition to any other right or remedy it may have, at Law or in equity, a temporary injunction or other injunctive relief, without the posting of any bond or other security, enjoining or restraining the other Party from any violation or threatened violation of this ARTICLE VI .
| 75Remedies
|
Capitalized terms used in this Agreement and not otherwise defined shall have the meanings set forth in Exhibit A hereto.
| 29Definitions
|
No Default or Event of Default exists under or with respect to any Loan Document. The Borrower is not in default in any material respect beyond any applicable grace period under or with respect to any other material agreement, instrument or undertaking to which it is a party or by which it or any of its property is bound in any respect, the existence of which default is likely (to the extent that the Borrower can now reasonably foresee) to result in a Material Adverse Effect.
| 62No Defaults
|
The Administrator may grant Options or Stock Appreciation Rights to one or more Service Providers, subject to such terms and conditions not inconsistent with the Plan as the Administrator shall determine. The Administrator will determine the number of Shares covered by each Option and Stock Appreciation Right, the exercise price of each Option and Stock Appreciation Right and the conditions and limitations applicable to the exercise of each Option and Stock Appreciation Right. A Stock Appreciation Right will entitle the Participant (or other person entitled to exercise the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of exercise over the exercise price per Share of the Stock Appreciation Right by the number of Shares with respect to which the Stock Appreciation Right is exercised, subject to any limitations of the Plan or that the Administrator may impose and payable in cash, Shares valued at Fair Market Value on the date of exercise or a combination of the two as the Administrator may determine or provide in the Award Agreement.
| 46General
|
Unless otherwise provided herein or in the Credit Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Credit Agreement, if to the Mortgagor or the Mortgagee, addressed to it at the address set forth in the Credit Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.8 .
| 65Notices
|
The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision(s) in this Agreement.
| 97Waivers
|
This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail (email) or downloaded from a website or data room (any such delivery, an “ Electronic Delivery ”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this Agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
| 26Counterparts
|
In the event that Participant breaches any of the covenants contained in Section 2.3, 2.4 and 2.5, this Award will immediately and automatically be cancelled and forfeited without consideration as of the date of such breach, and any proceeds, gains or other economic benefit actually or constructively received by Participant in connection with the settlement of this Award must be promptly re-paid by Participant to the Company upon request.
| 44Forfeitures
|
No waiver by the Secured Party of any default shall operate as a waiver of any other default or of the same default on any subsequent occasion.
| 63No Waivers
|
As of the date hereof, Schedule 6 sets forth a true and accurate list of (a) all registrations of and applications for Patents, Trademarks, and Copyrights owned or co-owned by any Grantor that are registered or applied for in the PTO or United States Copyright Office or registered or applied for outside the United States and (b) all exclusive in-bound Patent Licenses, Trademark Licenses and Copyright Licenses held by such Grantor.
| 53Intellectual Property
|
You or the Company may terminate this Agreement without cause upon 30 days’ written notice to the other party to this Agreement.
| 88Terminations
|
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 Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding (other than contingent indemnification, tax gross-up, expense reimbursement or yield protection obligations, in each case, for which no claim has been made).
| 98Warranties
|
This Agreement shall become effective on and as of the Closing Date and thereafter shall be binding upon and inure to the benefit of Holdings, the Borrower, the Agent and each Lender and their respective successors and assigns, except that neither the Borrower nor any other Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Agent and the Lenders (and any other attempted assignment or transfer by any party hereto shall be null and void). Notwithstanding the foregoing, Holdings shall not be a party hereto and shall not have any rights or obligations hereunder until the effective time of the Spinco Merger.
| 13Binding Effects
|
If any provision of this letter or its application in a circumstance is restricted, prohibited or unenforceable, the provision shall be ineffective only to the extent of the restriction, prohibition or unenforceability without invalidating the remaining provisions of this letter and without affecting its application to other circumstances.
| 79Severability
|
THE LENDER AND EACH GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER OR ANY GRANTOR IN CONNECTION HEREWITH. EACH GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THE LOAN DOCUMENTS.
| 96Waiver Of Jury Trials
|
Promptly upon receiving knowledge of same, the Borrower shall notify the Administrative Agent if any representation or warranty set forth in Section 5.01 or 5.02 was incorrect at the time it was given or deemed to have been given and at the same time deliver to the Administrative Agent a written notice setting forth in reasonable detail the nature of such facts and circumstances. In particular, but without limiting the foregoing, the Borrower shall notify the Administrative Agent in the manner set forth in the preceding sentence before the Closing Date of any facts or circumstances within the knowledge of the Borrower which would render any of such representations and warranties untrue at the date when they were made or deemed to have been made.
| 76Representations
|
Section headings are used in this Plan for convenience of reference only and shall not affect the meaning of any provision of the Plan.
| 48Headings
|
This Agreement contains the entire agreement between the parties concerning the subject matter hereof and supersedes any prior employment, severance, confidentiality or invention assignment agreement between the parties hereto; provided however , that the Company reserves and shall retain all rights and remedies it may have against the Executive with respect to any breach of any prior confidentiality and invention assignment agreements. Additionally, except as set forth herein, the Executive represents and acknowledges that no other agreement, promise or understanding, express or implied, including any guarantee of future compensation or continued employment, has been made by any person to induce the Executive to enter into this Agreement.
| 38Entire Agreements
|
The titles to the Articles and the headings of Sections in the Plan are placed herein for convenience of reference only and, in the case of any conflict, the text of this instrument rather than such titles or headings shall control.
| 90Titles
|
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of Florida or in the federal courts located in the state and county of Lee. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens . The Company and Buyer waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement, the Note or any related document or agreement by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
| 47Governing Laws
|
Guarantor hereby waive promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations and this Guaranty and any requirement that the Holders or exhaust any right or take any action against Borrower or any other Guarantor, person or entity or any collateral. Guarantor acknowledge that it will receive direct and indirect benefits from the SEA and financing arrangements contemplated herein and that the waiver set forth in this Section 3.3 is knowingly made in contemplation of such benefits. Guarantor hereby waives any right to revoke this Guaranty and acknowledge that this Guaranty is continuing in nature and applies to all Obligations, whether existing now or in the future.
| 97Waivers
|
Except if reasonably contemporaneous with the Borrower’s purchase, enter into any arrangement with any Person providing for the leasing by the Borrower of real or personal property which has been or is to be sold or transferred by such Borrower to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of such Borrower.
| 77Sales
|
For the services to be performed hereunder during the Period of Employment, Tyson shall pay you at a base salary of $ 325,000.00 , which may be adjusted by Tyson from time to time within the range paid to other employees in your Band. Such base salary shall be paid in accordance with Tyson's payroll practice.
| 11Base Salary
|
Each notice and other communication to be given pursuant to this Plan shall be in writing and shall be deemed given only when (a) delivered by hand, (b) transmitted by facsimile (fax), (c) received by the addressee, if sent by registered or certified mail, return receipt requested, or by Express Mail, Federal Express or other overnight delivery service, to the Company at its principal office and to a Director at the last known address of such Director (or to such other address or fax number as a party may specify by notice given to the other party pursuant to this Section 10.8).
| 65Notices
|
The institution of any litigation, arbitration proceeding or governmental proceeding which could reasonably be expected to have a Material Adverse Effect on the Seller.
| 58Litigations
|
Neither this Agreement nor any of the Schedules, attachments or Exhibits hereto, contains any untrue statement of fact or omits a fact necessary to make each statement contained herein or therein, not misleading. There is no fact which has not been disclosed to the Purchaser which has a Material Adverse Effect or could reasonably be anticipated to have a Material Adverse Effect.
| 31Disclosures
|
The proceeds of the 2017 Replacement Term A-2 Loans incurred pursuant to Amendment No. 8 13 shall be for the purposes specified therein, which include the refinancing of the Existing Term A Loans existing immediately prior to the Amendment No. 8 13 Effective Date and the paying of fees and expenses incurred in connection therewith. The proceeds of the 2015 2017 Replacement Term A B-3 Loans incurred pursuant to Amendment No. 9 13 shall be for the purposes specified therein, including for Restricted Payments permitted pursuant to Section 7.06(h)(vi) . The proceeds of the 2016 Incremental Term B-2 Loans incurred pursuant to Amendment No.10 shall be used for general corporate purposes, including to repay all or a portion of the Revolving Credit Loans outstanding on which include the refinancing of the Existing Term B-2 Loans existing immediately prior to the Amendment No. 10 13 Effective Date . The proceeds of the 2016 Incremental Term A Loans and the paying of fees and expenses incurred pursuant to Amendment No.11 shall be used for general corporate purposes in connection therewith . Revolving Credit Loans and Letters of Credit issued hereunder shall be for general corporate purposes and working capital of the Borrower and its Subsidiaries, and any other purpose not prohibited by this Agreement.
| 92Use Of Proceeds
|
The Company will pay all expenses associated with effecting the registration of the Registrable Securities, including filing, registration, qualification and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws, listing fees, fees and expenses incident to any required review by the Financial Industry Regulatory Authority, Inc. of the terms of the sale of Registrable Securities to be disposed of, reasonable fees and expenses of one counsel to the Sellers (such fees and expenses of counsel to the Sellers not to exceed an aggregate of $20,000) and the Sellers’ other reasonable expenses in connection with the registration, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to this Section 7 if such proceeding is subsequently withdrawn at the request of the Sellers.
| 41Expenses
|
In consideration of the severance payments and other benefits described in Section 4.3.2 and Section 4.3.3 , to which severance payments and benefits Executive would not otherwise be entitled, and as a precondition to Executive becoming entitled to such severance payments and other benefits under this Agreement, Executive agrees to execute and deliver to Employer on or before the sixtieth (60 th ) day after the applicable Termination Date a waiver and general release of claims in favor of the Company and each of the other QTS Companies, their respective predecessors and successors, and all of the respective current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, in a form reasonably satisfactory to Employer, that has become effective in accordance with its terms, and for which any revocation periods applicable to such release shall have expired on or prior to the sixtieth (60 th ) day following Executive’s Termination Date. If Executive fails to execute and deliver such release agreement on or before the sixtieth (60 th ) day following the applicable Termination Date, if any revocation period applicable to such release has not expired on or before the sixtieth (60 th ) day following Executive’s Termination Date or if Executive revokes such release as provided therein, Employer shall have no obligation to provide any of the severance payments and other benefits described in Section 4.3.2 or Section 4.3.3 other than any Accrued Obligations.
| 97Waivers
|
The Servicer shall, or shall cause USCC to, for itself and the Seller, keep insured by financially sound and reputable insurers all property of a character usually insured by companies engaged in the same or similar business similarly situated against loss or damage of the kinds and in the amounts customarily insured against by such companies, and carry such other insurance as is usually carried by such companies.
| 51Insurances
|
Pledgor agrees upon demand of Secured Party (a) to pay and reimburse Secured Party for any reasonable costs and expenses incurred by Secured Party in connection with the enforcement or preservation of any rights of Secured Party under this Agreement against Pledgor, and (b) to pay and reimburse Secured Party for, and indemnify and hold Secured Party harmless from and against, any recording and filing fees and any obligations with respect to stamp, excise, and other taxes, if any, that may be payable in connection with the execution, delivery, and performance of, or any amendment, supplement, waiver, or other modification of, this Agreement. The agreements in this Section 5.8 shall survive termination of this Agreement.
| 50Indemnity
|
Prior to the Discharge of Priority Lien Obligations, the Priority Lien Agent agrees that if it shall at any time hold a Priority Lien on any Collateral that can be perfected by the possession or control of such Collateral or of any Account in which such Collateral is held, and if such Collateral or any such Account is in fact in the possession or under the control of the Priority Lien Agent, the Priority Lien Agent will serve as gratuitous bailee for the Second Lien Agent for the sole purpose of perfecting the Second Lien of the Second Lien Agent on such Collateral. It is agreed that the obligations of the Priority Lien Agent and the rights of the Second Lien Agent and the other Second Lien Secured Parties in connection with any such bailment arrangement will be in all respects subject to the provisions of Article II . Notwithstanding anything to the contrary herein, the Priority Lien Agent will be deemed to make no representation as to the adequacy of the steps taken by it to perfect the Second Lien on any such Collateral and shall have no responsibility, duty, obligation or liability to the Second Lien Agent, any other Second Lien Secured Party or any other Person for such perfection or failure to perfect, it being understood that the sole purpose of this Article is to enable the Second Lien Secured Parties to obtain a perfected Second Lien in such Collateral to the extent, if any, that such perfection results from the possession or control of such Collateral or any such Account by the Priority Lien Agent. The Priority Lien Agent acting pursuant to this Section 5.01 shall not have by reason of the Priority Lien Security Documents, the Second Lien Security Documents, this Agreement or any other document or theory, a fiduciary relationship in respect of any Priority Lien Secured Party, the Second Lien Agent or any Second Lien Secured Party. Subject to Section 4.03 , from and after the Discharge of Priority Lien Obligations, the Priority Lien Agent shall take all such actions in its power as shall reasonably be requested by the Second Lien Agent (at the sole cost and expense of the Grantors) to transfer possession or control of such Collateral or any such Account (in each case to the extent the Second Lien Agent has a Lien on such Collateral or Account after giving effect to any prior or concurrent releases of Liens) to the Second Lien Agent for the benefit of all Second Lien Secured Parties.
| 46General
|
For all purposes, this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas without regard to Texas’ choice of law rules.
| 47Governing Laws
|
The provisions of this Letter Agreement may not be amended, modified or supplemented, and waivers or consents to departure from the provisions hereof may not be given, except by the written consent of all parties hereto.
| 2Amendments
|
The Company may withhold from any amounts payable under this Agreement or otherwise all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.
| 86Tax Withholdings
|
Pursuant to its Program Administration Agreement, Gotham has appointed and authorized Program Administrator (or its respective designees) to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Program Administrator by the terms hereof, together with such powers as are reasonably incidental thereto.
| 10Authorizations
|
Each Holder of Registrable Securities agrees that the fact that a notice pursuant to this Section 3 has been delivered shall constitute confidential information and such Holder agrees not to disclose that such notice has been delivered.
| 20Confidentiality
|
The term of the Company commences on June 26, 2016, the date on which the Company’s certificate of formation (the “ Certificate ”) was filed with the Secretary of State of the State of Delaware, and shall continue perpetually unless sooner terminated as provided in this Agreement.
| 89Terms
|
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or the L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
| 79Severability
|
(a) Unless previously terminated, the Revolving Commitments shall terminate on the Revolving Maturity Date and (b) the Term Loan Commitments shall terminate following disbursement of the Term Loans on the Effective Date.
| 88Terminations
|
Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, by electronic mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number or email or physical address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 7(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile or electronic mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of the Holder appearing on the books of the Company, or if no such facsimile number, email address, or physical address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via electronic mail at the email address set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via electronic mail at the email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given.
| 65Notices
|
The Company shall pay interest to the Holder on the principal balance borrowed at the rate of two and five tenths percent (2.5%) per month if the term is extended beyond initial maturity date. The note is issued at an original issuer discount of Fifteen Thousand Dollars ($15,000).
| 54Interests
|
This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive agrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, lawsuit or proceeding based on or arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.
| 47Governing Laws
|
The parties recognize that if any provision of this Agreement is violated by the parties hereto, the Indemnitee may be without an adequate remedy at law. Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as the Indemnitee may elect to pursue.
| 81Specific Performance
|
None of the factual information and data heretofore or contemporaneously furnished in writing by or on behalf of any Loan Party to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make such factual information and data (taken as a whole), in the light of the circumstances under which it was delivered, not materially misleading; it being understood that for purposes of this Section 5.13, such factual information and data shall not include projections and pro forma financial information or information of a general economic or general industry nature.
| 31Disclosures
|
Seller shall pay and discharge all taxes, assessments, levies, liens and other charges imposed on it, on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such taxes, assessments, levies, liens and other charges which are being contested in good faith and by proper proceedings and against which adequate reserves have been provided in accordance with GAAP.
| 87Taxes
|
Neither the Company nor any of the officers, directors or employees of the Company has employed any broker or finder or other Person in similar capacity in connection with the transaction contemplated by this Agreement.
| 15Brokers
|
Interest on the unpaid principal balance hereof (the “ Term Interest Rate ”) shall be computed on the basis of the actual number of days elapsed and a year of 360 days and shall accrue at a rate per annum equal to the greater of (i) the sum of (A) the “Prime Rate” as reported in the “Money Rates” column of The Wall Street Journal , adjusted as and when such Prime Rate changes, plus (B) Seven and One Quarter Percent (7.25%), or (ii) Eleven Percent (11%). Following and during the continuation of an Event of Default, the Term Interest Rate shall be increased by Five Percent (5%) per annum (the “ Default Interest Rate ”).
| 54Interests
|
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflict of laws. Any legal action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall only be instituted, heard and adjudicated (excluding appeals) in a state or federal court located in the County of New York, State of New York, and each party hereto knowingly, voluntarily and intentionally waives any objection which such party may now or hereafter have to the laying of the venue of any such action, suit or proceeding, and irrevocably submits to the exclusive personal jurisdiction of any such court in any such action, suit or proceeding. Service of process in connection with any such action, suit or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement.
| 47Governing Laws
|
Prior to the Closing, MRGE does not have any subsidiaries except for its wholly owned Canadian subsidiary, Bridgewater Construction Ltd., located in Etobicoke, Ontario.
| 83Subsidiaries
|
Any notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given if delivered personally or three business days after deposit in the United States mail by Certified Mail, return receipt requested, properly addressed and postage prepaid, if to the Company, the Bank or the Committee, at the Bank’s principal office address at 3980 Premier Drive, High Point, North Carolina 27265; and, if to Participant, at his last address appearing on the books of the Bank. The Bank and Participant may change their address or addresses by giving written notice of such change as provided herein. Any notice or other communication hereunder shall be deemed to have been given on the date actually delivered or as of the third (3rd) business day following the date mailed as set forth above, as the case may be.
| 65Notices
|
The Optionee understands and agrees that in the Committee’s sole discretion, the Company may cancel all or part of the Option or require repayment by the Optionee to the Company of all or part of any cash payment or shares of Common Stock acquired at exercise pursuant to any recovery, recoupment, clawback and/or other forfeiture policy maintained by the Company, including a violation of paragraph 6 above, from time to time. In addition, any payments or benefits the Optionee may receive hereunder shall be subject to repayment or forfeiture as may be required to comply with the requirements under the U.S. Securities Act of 1933, as amended (the “ Securities Act ”), the Exchange Act, rules promulgated by the Commission or any other applicable law, including the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or any securities exchange on which the Common Stock is listed or traded, as may be in effect from time to time.
| 44Forfeitures
|
Without in any way limiting the provisions of Section 1 hereof, the Guarantor hereby waives notice of acceptance hereof, notice of any liability of the Guarantor hereunder, notice or proof of reliance by the Administrative Agent, the L/C Issuers or the Lenders upon the obligations of the Guarantor hereunder, and diligence, presentment, demand for payment on the Borrower, protest, notice of dishonor or non-payment of any of the Guaranteed Obligations, or other notice or formalities to the Borrower or the Guarantor of any kind whatsoever.
| 97Waivers
|
Seller and Purchaser acknowledge ARA, a Newmark company, is a transaction broker in this transaction (“ Agent ”), which shall be paid a commission by Seller pursuant to the terms and provisions of a separate written agreement. Other than the Agent, no party shall be entitled to a fee or commission in connection with the transaction contemplated by this Agreement. Each party agrees to indemnify, defend and hold harmless the other party and all shareholders, employees, officers and directors of the other party or the other party’s parent or affiliate (each of the above is individually referred to as an “ Indemnitee ”) from all claims, including attorney’s fees and costs incurred by an Indemnitee as a result of anyone’s claiming by or through any party any fee, commission or compensation on account of this Agreement, its negotiation or the sale hereby contemplated.
| 15Brokers
|
The Original Limited Partnership Agreement was effective for all financial and accounting purposes as of September 27, 2017. This Agreement shall be effective as of the date hereof.
| 34Effectiveness
|
No consent, waiver, approval, order or authorization of, or registration, declaration or filing (that has not already been obtained or completed) with any Person is, or at Closing will be, required in connection with the execution and delivery of this Agreement by Purchaser or the performance by Purchaser of the transactions contemplated hereby.
| 22Consents
|
As of the date of this Agreement Parent is current on its periodic reports required to be filed with the United States Securities and Exchange Commission, including any financial statements required thereby (the “Financial Statements”).
| 43Financial Statements
|
Subject to the provisions of Section 2.20 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender (which term shall include Issuing Banks for purposes of this Section 2.19(a)) shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (A) any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (regardless of whether the underlying law, treaty or governmental rule, regulation or order was issued or enacted prior to the date hereof), including the introduction of any new law, treaty or governmental rule, regulation or order but excluding solely proposals thereof, or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or (B) any guideline, request or directive by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law) or any implementation rules or interpretations of previously issued guidelines, requests or directives, in each case that is issued or made after the date hereof: (i) subjects such Lender (or its applicable lending office) or any company controlling such Lender to any additional Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) any Taxes on the overall net income of such Lender) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, liquidity, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurocurrency Rate Loans that are reflected in the definition of “Adjusted Eurocurrency Rate”) or any company controlling such Lender; or (iii) imposes any other condition, cost or expense (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or any company controlling such Lender or such Lender’s obligations hereunder or the applicable interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making, continuing, converting or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or in a lump sum or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
| 87Taxes
|
The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “ Intellectual Property Rights ”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
| 53Intellectual Property
|
This Plan is intended to be an unfunded “top-hat” plan within the meaning of U.S. Department of Labor Regulation Section 2520.20.104-24 and shall be interpreted, administered and enforced in accordance with ERISA. To the extent state law is applicable, the laws of the State of California without regard to any principles of conflicts of law which could cause the application of the laws of any jurisdiction other than the State of California shall apply.
| 47Governing Laws
|
Employee shall not publish or utter, whether in writing or orally, any disparaging statements about the character, competence, integrity, or business practices of the Corporation, its officers, directors, managers, supervisors, employees, or agents. Nothing in this Agreement, however, shall prevent Employee from providing truthful testimony as required by law or from engaging in any activities protected by law. Nothing in this release shall be construed to prevent Employee from communicating with any United States government agency regarding matters that are within the agency’s jurisdiction. Corporation agrees that no officer or director of Corporation will publish or utter, whether in writing or orally, any disparaging statements about the character, competence, integrity or business practices of Employee, unless compelled to do so as part of the judicial process as part of any litigation between the Parties related to this Agreement.
| 64Non-Disparagement
|
This Agreement constitutes an amendment and restatement of the Existing Revolving Credit Agreement effective from and after the Restatement Effective Date. The execution and delivery of this Agreement shall not constitute a novation of any indebtedness or other obligations owing to Agent, any Lender, Swingline Lender, or Issuing Bank under the Existing Revolving Credit Agreement based on any facts or events occurring or existing prior to the execution and delivery of this Agreement. On the Restatement Effective Date, the credit facilities described in the Existing Revolving Credit Agreement shall be amended and supplemented by the facilities described herein, and all loans, Letters of Credit, and other obligations of any Borrower outstanding as of such date under the Existing Revolving Credit Agreement shall be deemed to be loans, Letters of Credit, and obligations outstanding under the corresponding facilities described herein, without further action by any Person. Unless otherwise provided in any other Loan Document, any fees and interest accrued under the Existing Revolving Credit Agreement shall accrue up to (but not including) the Restatement Effective Date at the rates and in the manner provided in the Existing Revolving Credit Agreement but shall be due and payable at the times and in the manner provided under this Agreement. All costs and expenses which were due and owing under the Existing Revolving Credit Agreement shall continue to be due and owing under, and shall be due and payable in accordance with, this Agreement. On and after the Restatement Effective Date, each and every reference in the Loan Documents to this Agreement, and to the capitalized terms as defined in this Agreement (including, without limitation, the terms “Loans.” “Letter of Credit,” and “Obligations”) shall be deemed to refer to and mean this Agreement, and such capitalized terms as defined and used in this Agreement. Each Borrower further confirms and agrees that all such Loan Documents are and shall remain in full force and effect on and after the Restatement Effective Date, except as otherwise expressly provided herein or therein or except to the extent the same are amended, restated, supplemented or otherwise modified on the Restatement Effective Date. The amount of each Lender’s Revolving Commitment, as of the Restatement Effective Date, shall be as set forth on Schedule I , and Agent and each Lender shall cooperate in good faith to make all payments and fundings which Agent and the Lenders must make to reallocate the Revolving Commitments and the Obligations in respect thereof among the Lenders in accordance with their respective Revolving Commitments as set forth on Schedule I .
| 2Amendments
|
By his signature below, Executive represents that: (a) the consideration given to him in exchange for the waiver and release in this Agreement is in addition to anything of value to which he was already entitled; (b) Executive has been provided by the Company all wages, severance, vacation, benefits, commissions, bonuses, expense reimbursements, or other amounts owed to Executive by the Company, other than amounts and other benefits to which he has a right under the terms of this Agreement and that have not yet been provided; (c) Executive has not been denied any request for leave to which he believes he was legally entitled, and Executive was not otherwise deprived of any of his rights under the FMLA or any similar state or local statute; (d) Executive is knowingly and voluntarily executing this Agreement waiving and releasing any claims he may have as of the date he executes it; and (e) he has not assigned or transferred, or purported to assign or transfer, to any person, entity, or individual whatsoever, any of the Released Claims. Executive affirms that he has not filed or caused to be filed, and is not presently a party to, a Released Claim against any of the Released Parties. Executive further affirms that he has no known workplace injuries or occupational diseases for which Executive has not already filed a claim. Executive represents and warrants that he has not willfully engaged in conduct that would constitute fraud or material dishonesty with respect to his job duties for the Company.
| 76Representations
|
No delay on the part of any party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power, or privilege hereunder, nor any single or partial exercise of any right, power, or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.
| 97Waivers
|
During the two (2) years prior to the date hereof, the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the 1934 Act) all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Commission pursuant to the reporting requirements of the 1934 Act, including, without limitation, all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “ Public Reports ”). The Company has delivered or has made available to each of the Buyers or their respective representatives true, correct and complete copies of each of the Public Reports not available on the EDGAR system. As of their respective dates, the Public Reports complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission promulgated thereunder applicable to the Public Reports, and none of the Public Reports, at the time they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the Public Reports (the “ Financial Statements ”) complied in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto as in effect as of the time of filing. Such Financial Statements have been prepared in accordance with United States generally accepted accounting principles (“ GAAP ”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such Financial Statements, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to any of the Buyers which is not included in the Public Reports (including, without limitation, information referred to in Section 3.5 of this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the Financial Statements, nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and regulations of the Commission. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
| 43Financial Statements
|
Upon the other Party’s request, each Party agrees to execute, acknowledge, and deliver such further instruments, and to do all such other acts, as may be reasonably agreed by the Parties as necessary or appropriate to carry out the purposes and intent of this Agreement.
| 45Further Assurances
|
The Obligors shall cooperate reasonably and in good faith with the Administrative Agent, its counsel White & Case LLP, any one financial advisor that may at any time be appointed by the Administrative Agent (any such advisor, a “ Lender Financial Advisor ”) and such other professional advisors retained from time to time by the Administrative Agent in providing reasonable access to the Obligors’ books and records, to all other requested information relating to their business and financial affairs and their properties (excluding information subject to confidentiality obligations in favor of third parties which are not entered into in contemplation of this clause (a) or attorney-client privilege, constituting attorney work product or trade secrets or proprietary information or otherwise prohibited by law from disclosure), and to their senior management and professional advisory teams.
| 24Cooperation
|
To the fullest extent permitted under applicable law, Executive and the Company and the Bank expressly waive any and all rights to a jury trial with respect to any dispute arising out of or in connection with this Agreement.
| 96Waiver Of Jury Trials
|
The parties agree that the validity, construction, and enforceability of this Agreement shall be governed by and construed in all respects in accordance with the laws of the State of Texas without giving effect to the conflict of laws provisions thereof. The parties further agree that the sole and exclusive forum for litigating any disputes arising under or related to the terms of this Agreement will be a court of competent jurisdiction in the State of Texas.
| 47Governing Laws
|
This Agreement has been duly executed and delivered by Investor and is a valid and binding agreement, enforceable against Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights generally and to general principles of equity.
| 36Enforceability
|
Such PRIVCO Shareholder has the right, power, authority and capacity to execute and deliver this Agreement to which such PRIVCO Shareholders are each a party, to consummate the transactions contemplated by this Agreement to which such PRIVCO Shareholder is each a party, and to perform such PRIVCO Shareholders' obligations under this Agreement to which such PRIVCO Shareholders is a party. This Agreement has been duly and validly authorized and approved, executed and delivered by such PRIVCO Shareholders. Assuming this Agreement has been duly and validly authorized, executed and delivered by the parties thereto other than such PRIVCO Shareholder, this Agreement is duly authorized, executed and delivered by such PRIVCO Shareholders and constitutes the legal, valid and binding obligations of such PRIVCO Shareholder, enforceable against such PRIVCO Shareholders in accordance with their respective terms, except as such enforcement is limited by general equitable principles, or by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally.
| 9Authority
|
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision of this Agreement, and such provision(s) shall be deemed modified to the extent necessary to make it enforceable.
| 79Severability
|
Buyer’s execution, delivery and compliance with, and performance of the terms and provisions of, this Agreement, and the purchase of the Assets, 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 Buyer is a party in its individual capacity, or (iii) violate any Applicable Law relating to Buyer or its assets or properties, except, in each case, for any conflict or violation which will not materially adversely affect Buyer’s ability to consummate the transactions contemplated by this Agreement.
| 61No Conflicts
|
Seller and Purchaser each expressly acknowledges and agrees that, unless and until the Closing occurs, this Agreement, the transactions contemplated by this Agreement, and the terms, conditions, and negotiations concerning the same will be held in the strictest confidence by each of them and will not be disclosed by either of them except to Permitted Outside Parties permitted in Section 5.2. Purchaser further acknowledges and agrees that, until the Closing occurs, all information obtained by Purchaser in connection with the Property will not be disclosed by Purchaser to any third persons other than those described above without the prior written consent of Seller. Nothing contained in this Article XII will preclude or limit either party to this Agreement from disclosing or accessing any information otherwise deemed confidential under this Article XII in connection with that party’s enforcement of its rights following a disagreement hereunder, or in response to lawful process or subpoena or other valid or enforceable order of a court of competent jurisdiction or any filings with governmental authorities required by reason of the transactions provided for herein pursuant to an opinion of counsel; provided, however, in the event such disclosure is required pursuant to a subpoena or court order, the applicable party shall promptly notify the other party thereof so that the other party may seek a protective order, waive compliance with this Article XII, and/or take any other action mutually agreed upon by the parties and disclosure of information by Purchaser shall not be prohibited if that disclosure is of information that is or becomes a matter of public record or public knowledge from sources other than Purchaser or its agents, employees, contractors, consultants or attorneys in violation of the terms of this Agreement. Notwithstanding the foregoing to the contrary, Purchaser and Seller each acknowledges and agrees that the other, and entities which directly or indirectly own the equity interests in Seller or Purchaser, may disclose in SEC and other filings and governmental authorities, financial statements and/or other communications such information regarding the transactions contemplated hereby and any such information relating to the sale of the Property as may be necessary or advisable under federal or state securities law, rules or regulations (including U.S. Securities and Exchange Commission (“ SEC ”) rules and regulations, “generally accepted accounting principles” or other accounting rules or procedures or in accordance with Seller’s or Purchaser’s and such direct or indirect owners’ prior custom, practice or procedure. One or more of such owners will be required to publicly disclose the possible transactions contemplated hereby and file this Agreement with the SEC promptly after the execution of the same by both parties or as sooner required by law. Any press release about the transaction contemplated by this Agreement issued by either party shall be subject to the approval of the other party in its reasonable discretion. The provisions of this Article XII will survive any termination of this Agreement.
| 20Confidentiality
|
If any provision of this AIP is held invalid or unenforceable, the invalidity or unenforceability shall not affect the remaining parts of the AIP, and the AIP shall be enforced and construed as if such provision had not been included.
| 79Severability
|
The term of each Stock Appreciation Right shall be set by the Committee at the time of grant; provided, however, that no Stock Appreciation Right granted hereunder shall be exercisable after, and each Stock Appreciation Right shall expire, ten (10) years from the date it was granted.
| 89Terms
|
In the event the Participant’s active employment or other active service-providing relationship, as applicable, with the Company or an Eligible Subsidiary terminates (the date of any such termination is referred to as the “Termination Date”) for any reason (other than death, Early Retirement or Normal Retirement) whether or not in breach of applicable labor laws, unless contrary to applicable law and unless otherwise provided by the Administrator either initially or subsequent to the grant of the PSUs, all PSUs that are unvested as of the Termination Date shall automatically terminate as of the Termination Date and the Participant’s right to receive further PSUs under the Plan shall also terminate as of the Termination Date. The Committee shall have discretion to determine whether the Participant has ceased to be actively employed by (or, if the Participant is a consultant or director, has ceased actively providing services to) the Company or Eligible Subsidiary, and the effective date on which such active employment (or active service-providing relationship, as applicable) terminated. The Participant’s active employer-employee or other active service-providing relationship, as applicable, will not be extended by any notice period mandated under applicable law ( e.g., active employment shall not include a period of “garden leave”, paid administrative leave or similar period pursuant to applicable law). Unless the Committee provides otherwise (1) termination of the Participant’s employment will include instances in which Participant is terminated and immediately rehired as an independent contractor, and (2) the spin‑off, sale, or disposition of the Participant’s employer from the Company or an Eligible Subsidiary (whether by transfer of shares, assets or otherwise) such that the Participant’s employer no longer constitutes an Eligible Subsidiary will constitute a termination of employment or service.
| 46General
|
The original effective date of the Plan was January 1, 1997 and the Plan as Amended and Restated herein shall commence as of the Effective Date and, subject to the terms of the Plan, including those requiring approval by the shareholders of the Company and those limiting the period over which ISOs or any other Benefits may be granted, shall continue in full force and effect until terminated.
| 89Terms
|
This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic imaging system shall be deemed as effective as delivery of an originally executed counterpart.
| 26Counterparts
|
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
| 31Disclosures
|
In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
| 79Severability
|
The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Securities Act or Section 20 (a) of the Securities Exchange Act of 1934, as amended (“ Exchange Act ”), against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Placement Agent contained in Section 7 of the Placement Agency Agreement between the Placement Agent and the Company, dated as of October 31, 2017.
| 49Indemnifications
|
Should any provision of this Agreement be declared and/or be determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby.
| 79Severability
|
During the Term, Executive shall have the right, on the same basis as other members of senior management of the Company, to participate in and to receive benefits under any of the Company’s executive and employee benefit plans, insurance programs and/or indemnification agreements, as may be in effect from time to time, subject to any applicable waiting periods and other restrictions. In addition, Executive shall be entitled to the benefits generally afforded to other members of the senior management team under the Company’s vacation, holiday and business expense reimbursement policies (all such benefits, the “Benefits”). In addition, the Company shall subsidize Executive’s health insurance premiums at the rate of $700 per month should he elect to participate in the Company’s health insurance programs.
| 12Benefits
|
All provisions, terms, conditions, paragraphs, agreements and covenants (“Provisions”) contained in this Agreement are severable and, in the event any one of them shall be held to be invalid, this Agreement shall be interpreted as if such Provision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision.
| 79Severability
|
The following terms shall have the following meanings for purposes of this Section 4(f).
| 29Definitions
|
If any of the provisions of this Agreement (or parts thereof), or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect, and of the remaining provisions of this Agreement, shall not be in any way impaired or affected, it being intended that all of the provisions of this Agreement shall be enforceable to the fullest extent permitted by law.
| 79Severability
|
Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. Unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person. Unless otherwise specifically indicated or unless the context requires otherwise, (a) any reference to any statute, regulation or law herein shall refer to such statute, regulation or law, as applicable, as amended, modified or supplemented from time to time and (b) any reference to any agreement, instrument or other document herein shall refer to such agreement, instrument or other document, as applicable, as amended, amended and restated, modified or supplemented from time to time (subject to any restrictions on such amendments, amendments and restatements, modifications or supplements set forth herein). Whenever any provision of this Agreement requires the delivery of or otherwise references the consolidated financial statements (including, balance sheets, statements of operations, statements of comprehensive loss, statements of stockholders’ equity and statements of cash flow) of Holdings and its Subsidiaries or Borrower and its Subsidiaries, the Credit Parties may deliver or otherwise reference the consolidated financial statements of Parent and its Subsidiaries; provided that Parent (x) continues to control, directly or indirectly, Holdings, (y) consolidates Holdings and its Subsidiaries in accordance with GAAP and (z) has no material operations, assets or revenues other than those of Holdings and its Subsidiaries.
| 55Interpretations
|
The execution, delivery, and performance of this Agreement (and all documents required to be executed and delivered by Farmee hereunder) by Farmee, the consummation of the transactions contemplated hereby and thereby and the compliance by Farmee with the terms hereof and thereof will not (i) violate any provision of the certificate of incorporation, memorandum and articles of association, bylaws or other governing documents of Farmee, (ii) result in a material default (with due notice or lapse of time or both) or the creation of any lien or encumbrance or give rise to any right of termination, cancellation, or acceleration under any material agreement to which Farmee is a party or by which it is bound, (iii) to Farmee’s knowledge, violate any judgment, order, ruling, or decree applicable to Farmee, (iv) to Farmee’s knowledge, violate any Laws applicable to Farmee, or (v) to Farmee’s knowledge, except as disclosed on Schedule 6.2(b) require any consent, approval, or waiver from any Person other than the Government.
| 61No Conflicts
|
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