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This Agreement, together with all exhibits and schedules hereto and thereto constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties with respect to the subject matter hereof. | 38Entire Agreements
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The terms of this Agreement are intended by the Parties to be the final expression of their agreement with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral. The Parties further intend that this Agreement shall constitute the complete and exclusive statement of their terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement. | 38Entire Agreements
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The Depositor makes the following representations and warranties about the Sold Property and the 2017-A Reference Pool on which the Issuer is relying in purchasing the Sold Property. The representations and warranties are made as of the Closing Date and will survive the sale and assignment of the Sold Property by the Depositor to the Issuer under this Agreement and the pledge of the Sold Property by the Issuer to the Indenture Trustee under the Indenture. | 76Representations
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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Faxed and electronic copies are authorized. | 26Counterparts
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The masculine pronoun shall include the feminine pronoun and the feminine pronoun shall include the masculine pronoun and the singular pronoun shall include the plural pronoun and the plural pronoun shall include the singular pronoun, unless the context clearly indicates otherwise. | 23Construction
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This Agreement, together with the agreement(s) evidencing the Options (which agreement is partially amended as set forth herein), constitute the entire agreement between the Parties relating to this subject matter hereof and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. This Agreement may be amended or modified only with the written consent of the Executive and the Board. No oral waiver, amendment or modification will be effective under any circumstances whatsoever. This Agreement supersedes and replaces in its entirety the Executive Chairman of the Board and Director Agreement dated August 4, 2014, between the Company and the Executive, including any requirement to issuance a number of shares of common stock to Infinity Capital, LLC equal to 10% of any new issuances by the Company (and the Executive hereby waives and releases the Company from any such obligation in the past or in the future pursuant to the terms of such agreement). | 38Entire Agreements
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DMSI has no subsidiaries or divisions, and the Business has been conducted solely by DMSI and not through any Affiliate, joint venture, or other entity, Person or under any other name. | 83Subsidiaries
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Request any Advance or Letter of Credit, and the Company shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Advance or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding or financing any activities, business or transaction of or with any Sanctioned Person, or in any Designated Jurisdiction, to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto. | 92Use Of Proceeds
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The Executive agrees that the Executive’s services are unique and that he has access to Company Confidential Information and Associated Third-Party Confidential Information (as such terms are defined in the PIIA). Accordingly, without limiting the generality of Section 9(B) of the PIIA, the Executive agrees that a material breach by the Executive of any of the Restrictive Covenants would cause immediate and irreparable harm to the Company that would be difficult or impossible to measure, and that damages to the Company for any such injury would therefore be an inadequate remedy for any such breach. Therefore, the Executive agrees that in the event of any breach or threatened breach of any of the Restrictive Covenants, the Company shall be entitled, in addition to and without limitation upon all other remedies the Company may have under this Agreement, at law or otherwise, to obtain specific performance, injunctive relief and/or other appropriate relief (without posting any bond or deposit) in order to enforce or prevent any violations of such Restrictive Covenants. The Executive further agrees that the applicable period of time any Restrictive Covenant is in effect following the Severance Date, as determined pursuant to the foregoing provisions of this Section 6 and the PIIA, as applicable, such period of time shall be extended by the same amount of time that the Executive is in breach of any Restrictive Covenant. | 37Enforcements
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No Loan Party is in default under or with respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. | 62No Defaults
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The Article and Section headings of this Agreement are for convenience only and shall not constitute a part of this Agreement or in any way affect the meaning or interpretation thereof. | 48Headings
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The terms and conditions of this Agreement may be waived only by a written instrument signed by the Party waiving compliance. The failure of any Party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of or non-compliance with this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance. | 63No Waivers
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This Amendment shall be construed in accordance with and governed by the law of the state of New York. The provisions of Sections 9.09 and 9.10 of the Existing Credit Agreement shall apply to this Amendment to the same extent as if fully set forth herein. | 47Governing Laws
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This Agreement may be amended the Board or by the Committee at any time (a) without your consent, so long as the amendment does not materially and adversely affect your rights under the Award, or (b) with your consent. For purposes of clarity, any adjustment made to the Award pursuant to Section 8 of the Plan will be deemed not to materially and adversely affect your rights under this Award. | 2Amendments
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None of the Borrower or any of its Subsidiaries, nor, to the knowledge of the Borrower, any director, officer, employee, agent or controlled Affiliate of the Borrower or any of its Subsidiaries (a) is, or is owned or controlled by Persons that are, included on the list of “Specially Designated Nationals and Blocked Persons”, (b) is otherwise currently the subject of any Sanctions or (c) is located in a jurisdiction that is the subject of Sanctions. | 78Sanctions
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For the avoidance of doubt, (a) in the event a Participant exercises a SAR (whether during an Exercise Window or following a Termination of Employment), the date of determination of FMV, the exercise date and the settlement date shall occur in the same calendar year, and (b) the measurement date for purposes of establishing the exercise price of a SAR will be the Grant Date and the measurement date for purposes of determining the FMV on the date of exercise of a SAR will be the date of exercise of the SAR. | 59Miscellaneous
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During the Term, both parties shall retain the right to disclose, both orally and in writing, the Advisor's appointment as a consultant to the Company, subject to the prior approval (which shall not be unreasonably withheld, conditioned or delayed) by the Advisor of the text of any such disclosures. | 31Disclosures
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This First Amendment may be executed in multiple counterparts, and each counterpart when fully executed and delivered shall constitute an original instrument, and all such multiple counterparts shall constitute but one and the same instrument . Emailed and/or faxed counterparts and/or signatures are acceptable. | 26Counterparts
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The Plan and all Awards granted and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws thereof. | 47Governing Laws
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Each party shall at all times as of the first commercial sale (for profit sale to a business) of Products under this Agreement, maintain Commercial General Liability Insurance including but not limited to products/completed operations, blanket contractual and independent contractor coverages, with limits of liability of not less than $5,000,000 Combined Single Limit for Bodily Injury and Property Damage per occurrence. This policy shall cover, among other risks, the contractual liability assumed under the indemnification provision set forth in this Agreement. All coverage shall be obtained from A.M. Best "A" VII, or better, rated carriers. Each party shall be named as an additional insured on the other party's insurance described above. Each party shall furnish the other party with a certificate of insurance for such insurance coverage. | 51Insurances
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Sections 5 , 6 , 8 , 9 , 14 , 15 , 16 , 17 and 18 , and such other provisions hereof as may so indicate 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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At the time of and immediately after giving effect to the Borrowings on the Funding Date, no Default or Event of Default under Sections 8.1(a) , 8.1(b) , 8.1(d) (solely with respect to Sections 7.1 , 7.2 , 7.3 , 7.5 , 7.6 , 7.7 and 7.19 ), 8.1(g) , 8.1(h) or 8.1(i) shall exist. | 62No Defaults
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Each document (including any UCC financing statements, Intellectual Property Security Agreements, Deposit Account Control Agreements, Securities Account Control Agreements, and landlord access agreements and/or bailee waivers) required by the Loan Documents or under law or reasonably requested by the Administrative Agent to be filed, executed, registered or recorded to create in favor of the Administrative Agent (for the ratable benefit of the Secured Parties), a perfected Lien on the Collateral described therein, prior and superior in right and priority to any Lien in the Collateral held by any other Person (other than with respect to Liens expressly permitted by Section 7.3 ), shall have been executed (if applicable) and delivered to the Administrative Agent in proper form for filing, registration or recordation. | 1Agreements
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The closing of the Existing Agreement and the Original Note occurred on December 21, 2016, at which time Purchaser paid to the Company the principal amount of $6,869,817.60 (the “ Closing ”). | 18Closings
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The expenses of the Plan shall be borne by the Company. The Plan shall not be required to establish any special or separate fund or make any other segregation of assets to assume the payment of any award under the Plan. | 41Expenses
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All rent under this Sublease shall be paid without deduction or setoff of any kind, except as otherwise provided in this Sublease or the Lease, at the address of Sublandlord set forth above or to such other address as Sublandlord may designate in writing to Subtenant. Rent for any partial calendar month shall be prorated based on a thirty-day month. | 68Payments
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In the event of a breach by any of the Companies in the performance of any of the terms of this Agreement, Prudential, on behalf of the Purchasers, may demand specific performance of this Agreement and seek injunctive relief and may exercise any other remedy available at law or in equity, it being recognized that the remedies of Prudential on behalf of the Purchasers at law may not fully compensate Prudential on behalf of the Purchasers for the damages they may suffer in the event of a breach hereof. | 75Remedies
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You agree that following the Separation Date, you shall cooperate reasonably with the Company in connection with any matter or event relating to your employment or events that occurred during your employment, including, without limitation, in the defense or prosecution of any claims or actions now in existence or which may be brought or threatened in the future against or on behalf of the Company, including any claims or actions against its affiliates and its and their officers and employees. Your cooperation in connection with such matters, actions and claims shall include, without limitation, being available at mutually agreeable times and places and upon reasonable notice to meet with the Company regarding matters in which you have been involved, and any contract matters or audits; to prepare for, attend and participate in any proceeding (including, without limitation, depositions, consultation, discovery or trial); to provide affidavits; to assist with any audit, inspection, proceeding or other inquiry; and to act as a witness in connection with any litigation or other legal proceeding affecting the Company. The Company shall reimburse you for reasonable and documented expenses actually incurred in complying with your obligations under this paragraph. You further agree that should you be contacted (directly or indirectly) by any person or entity (for example, by any party representing an individual or entity) adverse to the Company, you shall promptly notify the Human Resources Director at the Company. | 24Cooperation
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There are currently 22,751,307 shares of Company Common Stock issued and outstanding, and stock options and warrants that are issued and granted as of the Effective Date to acquire an additional 5,610,000 shares of Company Common Stock. The Parties acknowledge and agree that the Capital-Raise Shares and the Compensation Shares shall be issued prior to the Closing Date, for a total of 29,611,307 shares of Company Common Stock that will be issued or issuable as of the Closing Date. Upon completion of the issuance of 167,797,406 shares of the Company Common Stock to NHL Shareholders, there will be a total of 197,408,713 shares of Company Common Stock issued and outstanding or issuable, without consideration of the Offering Shares. At Closing, the Company’s authorized capitalization will consist of (a) 499,000,000 shares of common stock, par value $0.001 per share (“the Company Common Stock”), of which 197,408,713 shares will be issued and outstanding or issuable, and (b) 1,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Stock”), none of which are issued and outstanding and all of which are undesignated. All issued and outstanding shares are legally issued, fully paid, and non-assessable and not issued in violation of the preemptive or other rights of any person. | 16Capitalization
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No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective, unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances. | 60Modifications
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Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. | 79Severability
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If any Event of Default described in Section 8.1.3 shall occur, the Obligations, including without limitation the Deferred Facility Fee, the Make-Whole Amounts and the Prepayment Premium Amount, as applicable, shall become immediately due and payable and all outstanding Commitments shall terminate, all without presentment, demand, protest, notice or further action of any kind; and, if any other Event of Default shall occur and be continuing, the Agent may, and upon the written request of the Lender shall, declare all of the Loans and other Obligations, including without limitation the Deferred Facility Fee, the Make-Whole Amounts and the Prepayment Premium Amount, to be due and payable and/or all or any part of the Commitments then outstanding to be terminated, whereupon such Loans and other Obligations shall become immediately due and payable (in whole or in part, as applicable), and such Commitments shall immediately terminate (in whole or in part, as applicable), all without presentment, demand, protest, notice or action of any kind. Any cash collateral delivered hereunder shall be applied by the Agent to any remaining Obligations and any excess remaining after the Obligations shall have been Paid in Full shall be delivered to the Borrower or as a court of competent jurisdiction may elect. Upon the declaration of the Obligations to be, or the Obligations becoming, due and payable pursuant to this Section 8.2 all such Obligations shall bear interest at the Default Rate. | 75Remedies
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Subject to Section 9 and Section 10 of this Agreement, the Company shall indemnify Indemnitee, to the fullest extent permitted by the laws of the State of Delaware in effect on the date hereof, or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against any and all Losses if Indemnitee was or is or becomes a party to or participant in, or is threatened to be made a party to or participant in, any Claim by reason of or arising in part out of an Indemnifiable Event, including, without limitation, Claims brought by or in the right of the Company, Claims brought by third parties, and Claims in which the Indemnitee is a witness. | 49Indemnifications
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This Third Amendment may be executed in two or more counterparts. Furthermore, the parties agree that (i) this Third Amendment may be transmitted between them by electronic mail and (ii) electronic signatures shall have the effect of original signatures relative to this Third Amendment. | 26Counterparts
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Certificates of insurance evidencing the existence of all insurance required to be maintained by the Borrower pursuant to Section 8.05 and the designation of Administrative Agent as the lender’s loss payees or additional named insured, as the case may be, thereunder. | 51Insurances
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The Company will employ Executive, and Executive will be employed by the Company, for the period set forth in Section 1(b), in the positions set forth in Section 2, and upon the other terms and conditions herein provided commencing on April 3, 2017 (the “Effective Date”). | 46General
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THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS). | 47Governing Laws
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The representations and warranties contained in Section 3 hereof shall be true and correct on and as of the date of the making of the Loans and the date of any advance under the Line of Credit with the same effect as if made on and as of such date, and no Event of Default or Default shall be in existence on the date of the making of Loans or such advance or shall occur as a result thereof. | 76Representations
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The Common Stock is registered pursuant to Section 12 of the Exchange Act and the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission under the Exchange Act (all of the foregoing filed within the two (2) years preceding the date hereof or amended after the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to as the “ SEC Documents ”). The Company is current with its filing obligations under the Exchange Act and all SEC Documents have been filed on a timely basis or the Company has received a valid extension of such time of filing and has filed any such SEC Document prior to the expiration of any such extension. The Company represents and warrants that true and complete copies of the SEC Documents are available on the SEC’s website ( www.sec.gov ) at no charge to Buyers, and Buyers acknowledge that each of them may retrieve all SEC Documents from such website and each Buyer’s access to such SEC Documents through such website shall constitute delivery of the SEC Documents to Buyers. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act, and none of the SEC Documents, at the time they were filed with the SEC, 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 light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable Law (except as such statements have been amended or updated in subsequent filings prior to the date hereof, which amendments or updates are also part of the SEC Documents). As of their respective dates, the financial statements of the Company included in the SEC Documents (“ Financial Statements ”) complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto (except as such Financial Statements have been amended or updated in subsequent filings prior to the date hereof, which amendments or updates are also part of the SEC Documents). All of the Financial Statements have been prepared in accordance with GAAP, consistently applied, during the periods involved (except: (i) as may be otherwise indicated in such Financial Statements or the notes thereto; 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 consolidated financial position of the Company as of the dates thereof and the consolidated 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). To the knowledge of the Company and its officers, no other information provided by or on behalf of the Company to the Buyers which is not included in the SEC Documents contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading. | 43Financial Statements
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Each Party shall take, or cause to be taken, any and all reasonable actions, including the execution, acknowledgment, filing and delivery of any and all documents and instruments, that the other Party may reasonably request in order to effect the intent and purpose of this Agreement and the transactions contemplated hereby. | 45Further Assurances
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Neither the execution and delivery by each Loan Party of the Loan Documents to which it is a party, nor the consummation of the transactions therein contemplated, nor compliance by it with the provisions thereof will violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on any Loan Party or (ii) any Loan Party’s articles or certificate of incorporation, partnership agreement, certificate of partnership, articles or certificate of organization, by-laws, or operating or other management agreement, as the case may be, or (iii) the provisions of any indenture, instrument or agreement to which any Loan Party is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of any Loan Party pursuant to the terms of any such indenture, instrument or agreement, except to the extent that any such violation, conflict, default or Lien under this clause (iii) would not reasonably be expected to have a Material Adverse Effect. No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any Governmental Authority, in each of the foregoing cases which has not been obtained by the applicable Loan Parties, is required to be obtained by any Loan Party in connection with the execution and delivery by the Loan Parties of the Loan Documents (other than any customary post-closing filing with the U.S. Securities and Exchange Commission as may be required), the borrowings under this Agreement, the payment and performance by the Borrower of the obligations hereunder or under any other Loan Document or the legality, validity, binding effect or enforceability against any Loan Party of any of the Loan Documents. | 61No Conflicts
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The parties acknowledge and agree that (a) the entity acting as Issuing Bank, in its capacity as such, may, without the consent of any party hereto, assign to an Affiliate all right, title and interest of (the “ Affiliate Assigned Rights ”) in, to and under any and all obligations of the Borrowers under Section 2.04(e) to reimburse the Issuing Bank for Revolving LC Disbursements (the “ Reimbursement Obligations ”), (b) in respect of all such Reimbursement Obligations constituting Affiliate Assigned Rights, for all purposes of this Agreement such Affiliate shall be deemed the “Issuing Bank,” (c) the obligations of the Revolving Lenders and Borrowers to the Issuing Bank shall, in the case of the Affiliate Assigned Rights, inure to the benefit of the Affiliate acquiring or having acquired such Affiliate Assigned Rights and be enforceable by such Affiliate and/or by the Issuing Bank on behalf of such Affiliate and (d) all payments made by Borrowers and/or any Revolving Lender to such Affiliate acquiring or having acquired such Affiliate Assigned Rights shall discharge all such obligations otherwise owing to the Issuing Bank that has assigned such Affiliate Assigned Rights, to the extent so paid. The foregoing shall not otherwise affect the rights and obligations of the entities acting as Issuing Banks hereunder. | 7Assignments
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The parties to this Agreement agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such non-performance or breach. It is accordingly agreed that the parties to this Agreement shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chosen Courts, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity (including monetary damages), and the parties to this Agreement hereby waive any requirement for the posting of any bond or similar collateral in connection therewith. Each party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that or otherwise assert that (i) the other party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. | 81Specific Performance
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As used in this Agreement, unless the context otherwise requires: (a) the terms defined herein will have the meanings set forth herein for all purposes; (b) references to “Section” are to a section hereof; (c) “include,” “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import; (d) “writing,” “written” and comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible form; (e) “hereof,” “herein,” “hereunder” and comparable terms refer to the entirety of this Agreement and not to any particular section or other subdivision hereof or attachment hereto; (f) references to any gender include references to all genders; and (g) references to any agreement or other instrument or statute or regulation are referred to as amended or supplemented from time to time (and, in the case of a statute or regulation, to any successor provision). | 23Construction
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Agreement ” ” ), dated as of , 20 , is by and between , a (the “ “ Subsidiary ” ” ), and BANK OF AMERICA, N.A., in its capacity as Administrative Agent under that certain Term Loan Credit Agreement (as it may be amended, modified, restated or supplemented from time to time, the “ “ Credit Agreement ” ” ), dated as of September 8, 2017, by and among BGC PARTNERS NEWMARK GROUP , INC., a Delaware corporation (the “ “ Borrower ” ” ), the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent. All of the defined terms in the Credit Agreement are incorporated herein by reference. | 1Agreements
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Credit Parties shall provide to Administrative Agent promptly after the commencement thereof, notice of all actions, suits, and proceedings before any Governmental Authority, affecting any Restricted Entity that could reasonably be expected to result in a Material Adverse Change. | 58Litigations
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If the Executive incurs a Disability following the occurrence of an event that gives rise to payments under Section 4(a), any remaining or unpaid benefits shall be paid in accordance with the terms of this Agreement to the Executive. If the Executive’s employment is terminated by reason of the Executive’s Disability during the Protection Period, the Company shall timely pay or provide the Executive with the Accrued Obligations, the Pro Rata Bonus and the Other Benefits, at the time or times specified in Section 4(a)(1) and subject to the proviso set forth in Section 4(a)(1)(A) to the extent applicable, and shall have no other severance obligations under this Agreement. With respect to the provision of the Other Benefits, the term “ Other Benefits ” as utilized in this Section 4(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of those generally provided by the Company and the Affiliated Entities to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter generally with respect to other peer executives of the Company and the Affiliated Entities and their families. | 30Disability
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Since December 31, 2015, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “ SEC Documents ”). As of their respective dates (except as they have been correctly amended), the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC (except as they may have been properly amended), 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 light of the circumstances under which they were made, not misleading. As of their respective dates (except as they have been properly amended), the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto 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). Except routine correspondence, such as comment letters and notices of effectiveness in connection with previously filed registration statements or periodic reports publicly available on EDGAR, to the Company’s knowledge, the Company or any of its Subsidiaries are not presently the subject of any inquiry, investigation or action by the SEC. | 43Financial Statements
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Upon a Participant’s Termination of Employment, during the two-year period following a Change in Control, (A) by the Company other than for Cause or Disability, or (B) by the Participant for Good Reason, any SARs outstanding as of such Termination of Employment which were outstanding as of the date of such Change in Control shall vest. | 17Change In Control
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Executive acknowledges that the Company may be irreparably injured by a violation of Sections 9 or 10 and agrees that the Company shall be entitled to an injunction restraining Executive from any actual or threatened breach of Sections 9 or 10 or to any other appropriate equitable remedy without bond or other security being required. Each of the parties to this Agreement will be entitled to enforce its rights under this Agreement, to recover damages and costs (including reasonable attorney’s fees and expenses) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. | 75Remedies
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Unless earlier terminated as provided herein, the Executive’s employment under this Agreement shall be for the period commencing on the date hereof and ending on June 30, 2019 (the “Term”). On each June 30th during the term of this Agreement, the Term hereof shall automatically be extended for an additional one-year period beyond the then-effective expiration date unless a written Notice of Termination from the Employer or the Executive is received 90 days prior to such anniversary advising the other that this Agreement shall not be further extended. If either party provides timely notice of non-renewal of the Agreement, but the Executive continues to provide services to the Employer as an employee, such post-expiration employment shall be deemed to be performed on an “at-will” basis and either party may thereafter terminate such employment with or without notice and for any or no reason and without any obligations determined by reference to this Agreement. | 89Terms
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(a) The Audited Financial Statements delivered (x) on the Closing Date, and (y) thereafter pursuant to Section 6.01(a) (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of Holdings and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of Holdings and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. | 43Financial Statements
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Executive shall be entitled to participate in the benefit plans provided by the Company for all employees generally, and for executive employees of the Company. The Company shall be entitled to change or terminate such plans in its sole discretion at any time. The Parties acknowledge that at the initial date of this Agreement the fringe benefits provided to Executive include a 401(k) plan, health, dental, life, short and long disability insurance, and reimbursement of certain reasonable out-of-pocket expenses in accordance with the policies and procedures of the Company. Any reimbursement of expenses made under this Agreement shall only be made for eligible expenses incurred during the Initial Employment Term or Renewal Term, and no reimbursement of any expense shall be made by the Company after December 31st of the year following the calendar year in which the expense was incurred. The amount eligible for reimbursement under this Agreement during a taxable year may not affect expenses eligible for reimbursement in any other taxable year, and the right to reimbursement under this Agreement is not subject to liquidation or exchange for another benefit. | 12Benefits
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During the term of this Agreement, Executive shall be entitled to paid vacation per calendar year in accordance with Company policies regarding vacation generally. | 93Vacations
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All notices under this Agreement shall be transmitted to the respective parties, shall be in writing and shall be considered to have been duly given or served when personally delivered to any individual party, or on the first (1st) business day after the date of deposit with an overnight courier for next day delivery, postage paid, or on the third (3rd) business day after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, or upon the receipt of a fax or an email during normal business hours, addressed in all cases to the party at his or its address set forth below, or to such other address as such party may designate, provided that notices will be deemed to have been given to the Escrow Agent on the actual date received. Any notice, request, demand, claim, or other communication hereunder directing the Escrow Agent to act or to refrain from acting shall include signatures of the authorized representative(s) of the requesting party(ies), and in the case of electronic mail the signature(s) shall be contained on a non-editable attachment (e.g. PDF) to the electronic mail. | 65Notices
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Unless this Agreement has been terminated, each party to this Agreement acknowledges and agrees that any breach by it of this Agreement shall cause any (or either) of the other parties irreparable harm which may not be adequately compensable by money damages. Accordingly, except in the case of termination, in the event of a breach or threatened breach by a party of any provision of this Agreement, each party shall be entitled to seek the remedies of specific performance, injunction or other preliminary or equitable relief, without having to prove irreparable harm or actual damages. The foregoing right shall be in addition to such other rights or remedies as may be available to any party for such breach or threatened breach, including but not limited to the recovery of money damages. | 81Specific Performance
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The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company. The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or limiting Indemnitee’s rights to receive advancement of expenses under this Agreement. | 37Enforcements
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This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile or .pdf signature and a facsimile or .pdf signature will constitute an original for all purposes. | 26Counterparts
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(i) The Company is not in violation of its certificate of formation or limited liability company operating agreement, and (ii) no other Debtor is in violation of its respective charter or bylaws, certificate of formation or limited liability company operating agreement or similar organizational document in any material respect. None of the Debtors is or has been at any time since January 1, 2014 in violation of any Law or Order, except for any such violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. | 19Compliance With Laws
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This Agreement contains the entire agreement of the parties relating to the subject matter hereof, and the parties hereto have made no agreements, representations or warranties relating to the subject matter of this Agreement that are not set forth otherwise herein. This Agreement supersedes any and all prior or contemporaneous agreements, written or oral, between Employee and Employer relating to the subject matter hereof. Any such prior or contemporaneous agreements are hereby terminated and of no further effect, and Employee, by the execution hereof, agrees that any compensation provided for under any such agreements is specifically superseded and replaced by the provisions of this Agreement. | 38Entire Agreements
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You agree that you shall not at any time engage in any form of conduct, or make any statement or representation, either oral or written, that disparages, impugns or otherwise impairs the reputation, goodwill or interests of Tyson, or any of its officers, directors, shareholders, managing members, representatives, and/or employees or agents in either the individual or representative capacities of any of the foregoing individuals (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments). Nor shall you direct, arrange or encourage others to make any such derogatory or disparaging statements on your behalf. Nothing in this Section, however, shall prevent you from providing truthful testimony or information in any proceeding or in response to any request from any goverumental agency, or judicial, arbitral or self-regulatory forum. | 64Non-Disparagement
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During the Term, Employee will be eligible for paid vacation in accordance with the plans, policies, programs and practices of LTLLC applicable to similarly situated employees of LTLLC generally. | 93Vacations
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The headings and captions of various paragraphs of this Mortgage are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions hereof. | 48Headings
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Assuming the receipt of all applicable consents and approvals in connection with the transactions contemplated hereby and the waiver of, or compliance with, all Linn Preferential Purchase Rights applicable to the transactions contemplated hereby, the execution, delivery and performance by Linn of this Agreement, the Transaction Documents to which it is a party and the consummation of the transactions contemplated herein and therein will not (a) conflict with or result in a breach of any provisions of the organizational documents of Linn, (b) result in a default or the creation of any Encumbrance on the Linn Assets (other than a Linn Permitted Encumbrance) or give rise to any right of termination, cancellation or acceleration under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license or Linn Contract, or (c) violate any Law applicable to Linn or any of the Linn Assets, except, in the case of clause (b), where such default, termination, cancellation, or acceleration would not have a material adverse effect upon the Linn Assets or the ability of Linn to consummate the transactions contemplated by this Agreement. | 61No Conflicts
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This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and the successors and assigns of the Company. Employee shall have no right to assign Employee’s rights, benefits, duties, obligations or other interests in this Agreement, it being understood that this Agreement is personal to Employee. | 7Assignments
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This License Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. | 26Counterparts
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Upon the admission of a Substituted Limited Partner, the General Partner shall amend and restate the Partner Registry to reflect the name, address, Capital Account, number of Partnership Units, and Percentage Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address, Capital Account, number of Partnership Units and Percentage Interest of the predecessor of such Substituted Limited Partner. | 2Amendments
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This Agreement may not be assigned by the Buyer without the prior written consent of the Sellers, which consent may be granted or withheld in the Sellers’ sole discretion. Notwithstanding the foregoing, (i) the Buyer may assign this Agreement to one or more (a) direct or indirect subsidiaries of the Buyer or any Affiliate of the Buyer in which the Buyer or the Buyer’s Affiliate owns at least fifty percent (50%) of the direct or indirect ownership interests in each such subsidiary or (b) Affiliates of the Buyer (as applicable, a “ Majority Owned or Controlled Entity ”) and (ii) the Buyer may designate one or more Majority Owned or Controlled Entities to which one or more of the Transferred Assets will be assigned at the applicable Closing (each, a “ Designated Subsidiary ”). Notwithstanding anything in this Agreement to the contrary, at any time prior to the applicable Closing, any Seller may transfer any Asset to a single purpose entity that is directly or indirectly wholly owned by such Seller or one of its Affiliates, and such single purpose entity shall be deemed a “Seller” for all purposes under this Agreement and the Closing Documents, as applicable. | 7Assignments
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(A) Seller has heretofore furnished to Buyer a copy of (a) its balance sheet for the fiscal year of Seller ended December 31, 2016 and the related statements of income for Seller for such fiscal year, with the opinion thereon of Deloitte & Touche LLP and (b) its balance sheet for the quarterly fiscal period of Seller ended September 30, 2017 and the related statements of income for Seller for such quarterly fiscal period. All such financial statements are accurate, complete and correct and fairly present, in all material respects, the financial condition of Seller (subject to normal year-end adjustments) and the results of its operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis, and to the best of the Seller’s knowledge, do not omit any material fact as of the date(s) thereof. Since September 30, 2017, there has been no material adverse change in the consolidated business, operations or financial condition of Seller from that set forth in said financial statements nor is Seller aware of any state of facts which (with notice or the lapse of time) would or could result in any such material adverse change. Seller has no liabilities, direct or indirect, fixed or contingent, matured or unmatured, known or unknown, or liabilities for taxes, long-term leases or unusual forward or long-term commitments not disclosed by, or reserved against in, said balance sheet and related statements, and at the present time there are no material unrealized or anticipated losses from any loans, advances or other commitments of Seller except as heretofore disclosed to Buyer in writing. | 43Financial Statements
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Executive shall be entitled to four (4) weeks of annual paid vacation days, which shall accrue and be useable by Executive in accordance with Company policy, as may be in effect from time to time. | 93Vacations
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The provisions of this Registration Rights Agreement may only be amended by the written consent of the Company and the Demand Holders (if the Demand Holders then own Registrable Securities); provided, however , that any amendment that has an adverse effect on the rights of, or imposes additional obligations on, the Holders other than the Demand Holders shall require the consent of such Holders other than the Demand Holders that hold in the aggregate at least 50% of the Registrable Securities then held by such Holders (if such Holders then own Registrable Securities). The Holders acknowledge and agree that any Person that becomes a Stockholder shall have the rights and obligations set forth in this Registration Rights Agreement and that such Person becoming a Stockholder shall be deemed not to be an amendment to this Registration Rights Agreement. | 2Amendments
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Subject to adjustment as provided in Section 14 , the total number of Shares that may be issued under the Plan is 2,000,000 Shares (the “Share Authorization”) . The Shares issuable under the Plan may be authorized, but unissued, or reacquired Common Stock. | 46General
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All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Purchased Securities pursuant to this Agreement shall be obtained and effective as of the Initial Closing. | 72Qualifications
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This Agreement has been duly executed and delivered by the Borrower and each other Loan Party. When the conditions to effectiveness in Section 4 of this Agreement have been satisfied, each of this Agreement and each Loan Document (as amended hereby) is the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law). | 36Enforceability
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This Guaranty contains the entire understanding among the Parties hereto with respect to the subject matter hereof and supersedes any and all prior or other contemporaneous understanding, correspondence, negotiations or agreements between them respecting the subject matter hereof. | 38Entire Agreements
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[Without limiting the generality of the foregoing, this Agreement supersedes the provisions of any employment agreement, employment offer letter or similar agreement between the Participant and the Company with respect to the vesting schedule (including the acceleration of vesting) of the Award, and any provision in such agreement or letter which would otherwise determine the vesting schedule (including the acceleration of such vesting) of the Award shall have no force or effect with respect to the Award.] 10 Subject to the limitation on the transferability of the Performance Shares contained herein, this Agreement shall be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto. | 38Entire Agreements
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Tenant shall reimburse Landlord, on demand, as Additional Rent for any taxes required to be paid by Landlord that are not already included in Tax Expenses, excluding state, local, and federal personal or corporate income taxes measured by the net income of Landlord from all sources ard estate and inheritance taxes, regardless of whether such taxes are now customary or within the contemplation of the parties to this Lease, when those taxes are: (a) Measured by or reasonably attributable to: (1) The cost or value of Tenant’s equipment, furniture, fixtures, and other personal property located in the Premises; or (2) The cost or value of my leasehold improvements made in or to the Premises by or for Tenant (to the extent that the cost or value of those leasehold inprovements exceeds the cost or value of a building-standard build-out, as determined by Landlord, regardless of whether title to those improvements is vested in Tenant or Landlord); (b) Assessed on or related to he possession, leasing, operation, management, maintenance, alteration, repair, use, or occupancy by Tenant of (1) The Premises; (2) Any portion of the Real Property; or (3) The parking facility used by Tenant in connection with this Lease; or (c) Assessed either on this transaction or on any document to which Tenant is a party that creates or transfers an interest or an estate in the Premises. | 87Taxes
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As of the date hereof, the Company has no Subsidiaries. The Company covenants and agrees that it shall not create or acquire any Subsidiaries without the written consent of Aron. | 83Subsidiaries
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Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided , however , (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. | 74Releases
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This Agreement constitutes the entire understanding between the Parties concerning the subject matter hereof and supersedes any prior agreement or letter of intent between the Parties. No other representations, inducements, promises or agreements between the Parties, relating to the subject matter hereof and not embodied in this Agreement are of any force or effect. | 38Entire Agreements
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In consideration of the transactions set forth in Section 1 of this Agreement, each Employer Group Entity, on behalf of itself and its subsidiaries, affiliates, divisions, successors, assigns, officers, directors, agents, attorneys, partners and current and former employees (collectively, the “ Employer Releasors ” and together with the Former Employee Releasors, the “ Releasing Parties ”) agrees to and does hereby irrevocably and unconditionally release, acquit and forever discharge the Former Employee, and his heirs, executors, administrators, representatives, agents, advisors, successors and assigns and DDFS (hereinafter collectively referred to as the “ Former Employee Releasees ”), with respect to and from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and costs) of any kind whatsoever, known or unknown, whether in law or equity and whether arising under federal, state or local law, which the Employer Releasors had, now have, or may have or claim to have in the future against each or any of the Former Employee Releasees by reason of any matter, course or thing whatsoever from the beginning of the world until the date of execution of this Agreement (the “ Employer Released Claims ” and, together with the Former Employee Released Claims, the “ Released Claims ”); provided , however , that nothing herein shall release the Former Employee from (a) obligations or restrictions arising under this Agreement, and (b) any claim arising as a result of or related to Former Employee’s alleged actual fraud or purposeful and intentional bad faith acts that are associated with the Former Employee’s alleged actual fraud (an “Excluded Actual Fraud and Related Malfeasance Claim”). | 74Releases
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During the Employment Period, the Company shall pay to Employee an annualized base salary of $450,000 (the “ Base Salary ”) in consideration for Employee’s services under this Agreement, payable in substantially equal installments in conformity with the Company’s customary payroll practices for other senior executives as may exist from time to time, but no less frequently than monthly. The Base Salary shall be reviewed by the Compensation Committee of the Board (the “ Compensation Committee ”) in accordance with the Company’s policies and practices, but no less frequently than once annually, and may be increased but not decreased (unless agreed to in writing by Employee). To the extent applicable, the term “Base Salary” shall include any such increases (or decreases agreed to in writing by Employee) to the Base Salary enumerated above. | 11Base Salary
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This Agreement and the other Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction. | 47Governing Laws
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The Company will require any successor to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to compensation from the Company in the same amount and on the same terms as Executive would be entitled to hereunder upon a Change of Control Termination. The Company’s rights and obligations under this Agreement shall inure to the benefit of and shall be binding upon the Company’s successors and assigns. | 84Successors
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No Reportable Event has occurred with respect to any Plan which would reasonably be expected to result in a Material Adverse Effect. Each Plan complies in all material respects with all applicable provisions of ERISA. Each Credit Party or each ERISA Affiliate have filed all reports required by ERISA and the Code to be filed with respect to each Plan unless such a failure to file is not reasonably likely to result in a Material Adverse Effect. | 39Erisa
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Schedule 4.20 sets forth a true, complete and correct description of all insurance maintained by Holdings or by the Restricted Subsidiaries as of the Closing Date. Such insurance is in full force and effect and all premiums have been duly paid. Holdings and the Restricted Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice. | 51Insurances
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This Agreement sets forth the entire agreement between Employer and Employee with respect to the subject matter of this Agreement and fully supersedes all prior negotiations, representations and agreements, whether written or oral, between Employer and Employee with respect to the subject matter of this Agreement, including, but not limited to, that certain Severance and Consulting Agreement, as amended, dated as of August 25, 2011, between ADESA, Inc. and Employee. | 38Entire Agreements
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Tenant may, upon notice to Landlord, permit any entity which controls, is controlled by, or is under common control with Tenant, or any entity that merges or consolidates with Tenant, to take an assignment of this Lease or to sublet all or part of the Premises. | 7Assignments
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You will report to Gary Steele, CEO, who will assign and direct your job duties and responsibilities. You will work from our office located in Sunnyvale, CA. The Company may change your position, duties, and work location from time to time as it deems necessary. | 32Duties
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Subject to the remaining terms of this Section 2 , this Agreement shall be for an initial term that begins on the Effective Date and continues in effect through December 31, 2017 (the “ Initial Term ”) and, unless terminated sooner as herein provided, shall continue on a year-to-year basis after the Initial Term (each year, a “ Renewal Term ,” and each Renewal Term together with the Initial Term, the “ Term ”). If either Party elects not to renew this Agreement for a Renewal Term, such Party must give a written Notice of Termination to the other Party at least 180 days before the expiration of the then-current Initial Term or Renewal Term, as applicable. In the event that one Party provides the other with a Notice of Termination pursuant to this Section 2 , no further automatic extensions shall occur and this Agreement shall terminate at the end of the then-existing Initial Term or Renewal Term, as applicable, and such Termination shall not result in any entitlement to compensation pursuant to Section 6 or otherwise. | 89Terms
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Any notices referred to herein shall be in writing and shall be deemed given if delivered in person or by facsimile transmission, or sent by U.S. registered or certified mail to the Participant at his or her address on file with the Company (or to such other address as the Participant shall specify by notice), or to the Company at its principal executive office, Attn: Secretary. | 65Notices
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This Agreement shall be binding on the Parties as of the Clearance Date, provided that Articles 1A and 10 (and the defined terms necessary therefor) shall be effective and binding on the Parties beginning on the Execution Date. Thereafter, unless terminated earlier pursuant to Section 8.2 below, this Agreement shall continue in full force and effect for the entire commercial life of the Licensed Product on a country by country basis (the “ Agreement Term ”). For clarity, “entire commercial life of the Licensed Products” shall be understood as the moment in which Almirall decides to stop continue commercializing the Licensed Products because at Almirall’s sole discretion, the Licensed Products do not have sufficient economic value in the market as to compensate Commercialization’s costs. At the expiry of the Royalty Term with respect to a Licensed Product in a country of the Territory the licenses granted to Almirall and Aqua hereunder shall become irrevocable, fully paid up and royalty free with respect to such Licensed Product in such country. | 89Terms
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Persons eligible to participate in this Plan include all Board members, employees, officers, and executives of, and consultants and advisors to, the Company or a Subsidiary, as determined by the Committee. | 46General
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Upon and after the occurrence of an Event of Default pursuant to Sections 11.7, 11.8, 11.9 or 11.20, all Obligations shall be immediately due and payable and this Agreement and all Commitments of Lenders shall be deemed terminated. Upon the occurrence of any other Event of Default not specified in the preceding sentence, and at any time thereafter during the continuation of such Event of Default, at Agent’s option or at the direction of Required Lenders, all Obligations shall be immediately due and payable and Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the Commitments of Lenders to make Advances. Upon and after the occurrence of any Event of Default, and during its continuation, Agent shall have the right to exercise any and all other rights and remedies provided for herein, under the Uniform Commercial Code and at law or equity generally, including, without limitation, the right to (i) foreclose the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession of and sell any or all of the Collateral with or without judicial process and (ii) exercise all rights and powers with respect to the Collateral as Loan Party might exercise (including, without limitation, taking any action under any power of attorney received by Agent with respect to any collateral securing any Mortgage Loan). Agent may enter any Loan Party’s premises or other premises without legal process and without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time thereafter, in its discretion without notice or demand, take the Collateral and remove the same to such place as Agent may deem advisable and Agent may require Loan Parties to make the Collateral available to Agent at a convenient place. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Loan Parties at least five (5) Business Days prior to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and such right and equity are hereby expressly waived and released by each Loan Party. In connection with the exercise of the foregoing remedies, Agent is granted permission to use all of each Loan Party’s trademarks, trade styles, trade names, patents, patent applications, licenses, franchises and other proprietary rights which are used in connection with (a) Inventory for the purpose of disposing of such Inventory and (b) Equipment for the purpose of completing the manufacture of unfinished goods. | 75Remedies
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No course of dealing or omission or delay on the part of any party hereto in asserting or exercising any right hereunder shall constitute or operate as a waiver of any such right. No waiver of any provision hereof shall be effective, unless in writing and signed by or on behalf of the party to be charged therewith. No waiver shall be deemed a continuing waiver or waiver in respect of any other or subsequent breach or default, unless expressly so stated in writing. | 97Waivers
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The section headings in this Award Agreement are inserted only as a matter of convenience, and in no way define, limit or interpret the scope of this Award Agreement or of any particular section. | 48Headings
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The undersigned acknowledges and agrees that the Lien held by the Collateral Trustee for its benefit may be released and/or subordinated without the undersigned’s consent pursuant to the terms of Article 4 of the Collateral Trust Agreement. | 74Releases
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Each of the Lenders, each L/C Issuer and each of the Agents agrees that it shall maintain in confidence any information relating to any Parent Entity, the Borrower and any Subsidiary furnished to it by or on behalf of any Parent Entity, the Borrower or any Subsidiary (other than information that (a) has become available to the public other than as a result of a disclosure by such party in breach of this Section 9.16, (b) has been independently developed by such Lender, such L/C Issuer or such Agent without violating this Section 9.16 or (c) was or becomes available to such Lender, such L/C Issuer or such Agent from a third party which, to such person’s knowledge, had not breached an obligation of confidentiality to the Borrower, any Parent Entity or any Loan Party) and shall not reveal the same other than to its Affiliates, directors, trustees, officers, employees and advisors with a need to know or to any person that approves or administers the Loans on behalf of such Lender (so long as each such person shall have been instructed to keep the same confidential and it being understood and agreed that such Agent, such L/C Issuer or such Lender, as applicable, shall be responsible for any breach of confidentiality by any such person to which such Agent, L/C Issuer or Lender discloses such information to), except : (A) to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded (provided that notice of such requirement or order shall be promptly furnished to the Borrower prior to such disclosure to the extent practicable and legally permitted), (B) as part of normal reporting or review procedures to, or examinations by, Governmental Authorities or self-regulatory authorities, including the National Association of Insurance Commissioners or the National Association of Securities Dealers, Inc., (C) in order to enforce its rights under any Loan Document in a legal proceeding, (D) to any pledgee under Section 9.04(d) or any other prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such person shall have been instructed to keep the same confidential in accordance with this Section 9.16 or terms substantially similar to this Section), (E) to any direct or indirect contractual counterparty in Swap Agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 9.16 or terms substantially similar to this Section) and (F) to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement; provided that, in the case of clauses (D) and (E), no information may be provided to a person known to be an Ineligible Institution or person who is known to be acting for an Ineligible Institution. | 20Confidentiality
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Licensee shall promptly inform Children’s of all matters that come to its attention that may affect the filing, prosecution, defense or maintenance of the Licensed Patents. Licensee certifies to Children’s on behalf of itself and any entity to which it conveys Licensed Rights, that they qualify for “small entity” status pursuant to 13 C.F.R. 121.802 and shall notify Children’s immediately in the event this no longer is the case. Children’s shall use its best efforts to promptly notify Licensee, within **** of Children’s receipt of all matters that come to its attention that may affect the filing, prosecution, defense or maintenance of the Licensed Patents. | 65Notices
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Each Grantor agrees that all Pledged Equity Interests delivered by such Grantor pursuant to this Agreement will be accompanied by duly executed undated blank powers, or other equivalent instruments of transfer reasonably acceptable to the Administrative Agent. Each Grantor will, from time to time upon the reasonable request of the Administrative Agent, promptly deliver to the Administrative Agent such powers, instruments, and similar documents, reasonably satisfactory in form and substance to the Administrative Agent, with respect to the Collateral and will, from time to time upon the request of the Administrative Agent during the continuance of any Event of Default, promptly transfer any Pledged Equity Interests or other Equity Interests constituting Collateral into the name of any nominee designated by the Administrative Agent. | 70Powers
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