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Subject to Section 14(a), the Manager may assign the agreement in its entirety or delegate certain of its duties under the Agreement to any of its Affiliates without the approval of the Independent Directors; provided that any such assignment or delegation does not require the approval of the Independent Directors under the Investment Company Act. Any other assignment by the Manager must be consented to in writing by the Company with the approval of a majority of the Independent Directors. Any permitted assignment shall bind the assignee under this Agreement in the same manner as the Manager is bound, and the Manager shall be liable to the Company for all errors or omissions of the assignee under any such assignment. In addition, the assignee shall execute and deliver to the Company a counterpart of this Agreement naming such assignee as Manager. This Agreement shall not be assigned by the Company without the prior written consent of the Manager, except in the case of assignment by the Company to another REIT or other organization which is a successor (by merger, consolidation, purchase of assets, or other transaction) to the Company, in which case such successor organization shall be bound under this Agreement and by the terms of such assignment in the same manner as the Company is bound under this Agreement. | 7Assignments
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The amended and restated Plan shall be effective as of the 2017 Amendment Effective Date. | 33Effective Dates
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Such Seller’s execution, delivery and compliance with, and performance of the terms and provisions of, this Agreement, and the sale of such Seller’s Asset, will not (i) conflict with or result in any violation of its organizational documents, (ii) conflict with or result in any violation of any provision of any bond, note or other instrument of indebtedness, contract, indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which such Seller is a party in its individual capacity or which binds its Asset, or (iii) violate any Applicable Law relating to such Seller or its assets or properties except, in each case, for any conflict or violation which will not materially adversely affect (A) such Seller’s ability to consummate the transactions contemplated by this Agreement, (B) such Seller’s interest in its applicable Asset or (C) the operation of such Seller’s Asset. | 61No Conflicts
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All of the obligations of the Borrowers under this Section 3 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments and repayment of all other Obligations hereunder. | 85Survival
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This Agreement together with all Schedules constitutes the entire agreement between the Parties with regard to the subject matter hereof and supersedes any and all agreements, whether oral or written, between the Parties with respect to its subject matter. No amendment or modification to this Agreement will be valid unless in writing and signed by both Parties. If any portion of this Agreement is found to be invalid or unenforceable, such provision will be deemed severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement, except to the extent that the severed provision deprives either Party of a substantial portion of its bargain. Neither Party will be deemed to have waived any rights or remedies accruing under this Agreement unless such waiver is in writing and signed by the Party electing to waive the right or remedy. The waiver by any Party of a breach or violation of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of such provision or any other provision of this Agreement. Neither Party will be liable for any delay or failure to perform under this Agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such Party's reasonable control. No Party may assign its rights or obligations under this Agreement without the express written consent of the other Party. Nothing in this Agreement will confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns. The expiration or termination of this Agreement or any Schedule will not destroy or diminish the binding force and effect of any of the provisions of this Agreement or any Schedule that expressly, come into or continue in effect on or after such expiration or termination, including, without limitation, provisions relating to payment of fees and expenses (including witness fees and expenses), governing law, arbitration, limitation of liability and indemnity. | 59Miscellaneous
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The term of this Sublease (the “ Term ”) shall commence on the date Sublessor receives the written consent of the Master Landlord to this Sublease (“ Commencement Date ”) and shall expire on August 30, 2034, i.e., one (1) day prior to the expiration of the Master Lease. The renewal or extension of the Master Lease or this Sublease shall be governed by Section 11 below. | 89Terms
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Each party’s obligations under this Section 2.12 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. | 85Survival
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Each Credit Party agrees to, to the extent required by the Loan Documents, make, execute and deliver all such additional and further acts, things, deeds, instruments and documents as the Administrative Agent may reasonably require for the purposes of implementing or effectuating the provisions of this Amendment and the other Loan Documents. | 45Further Assurances
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The Company shall cooperate with the Purchaser, at Company’s expense, in perfecting the Purchaser’s security interest in any of the Article 9 Collateral. | 24Cooperation
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The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Notes and the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority or Trading Market to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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This Agreement shall become effective when it shall have been executed by the Borrower and Holdings and the Administrative Agent shall have been notified by each Lender, Swing Line Lender and L/C Issuer that each such Lender, Swing Line Lender and L/C Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower and Holdings, each Agent and each Lender and their respective successors and assigns. | 13Binding Effects
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This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by Company without the written consent of MassRoots, which shall not be unreasonably withheld, conditioned or delayed, other than to an Affiliate of Company with written notice to MassRoots and provided such Affiliate expressly assumes the obligations of Company hereunder. | 7Assignments
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The Company and the Holder hereby acknowledge and agree that this Forbearance Agreement constitutes a "New Exchange Document" under the 2017 Note. Accordingly, it shall be an Event of Default under the 2017 Note if (a) any representation or warranty made by the Company under or in connection with this Forbearance Agreement shall have been untrue, false or misleading in any material respect when made, or (b) the Company shall fail to perform or observe any term, covenant or agreement contained in this Forbearance Agreement. Nothing contained in this Forbearance Agreement shall prejudice or otherwise affect the Holder's rights to enforce the provisions contained herein upon the default by the Company in the performance thereof. | 37Enforcements
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Borrower agrees to promptly take such action, upon the request of Lender, as is reasonably necessary to carry out the intent of this Amendment. | 45Further Assurances
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The Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information regarding the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided to the Investor regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at the time of release 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 the light of the circumstances under which they are made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly disclosed. The Company acknowledges and agrees that the Investor does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2. | 31Disclosures
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Borrowers shall use the proceeds of Revolving Loans solely for (a) transaction fees incurred in connection with the Financing Documents and the refinancing on the Closing Date of Debt, and (b) for working capital needs of Borrowers and their Subsidiaries. No portion of the proceeds of the Loans will be used for family, personal, agricultural or household use. | 92Use Of Proceeds
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By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender's Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. | 67Participations
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Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document (including the Payment in Full of the Secured Obligations). | 85Survival
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The term of this Agreement (“ Term ”) shall commence on the date hereof and continue until terminated (x) by Flextronics for convenience, upon 30 days’ prior written notice to Enphase, (y) by Enphase on or after twenty-four months from the date hereof upon prior written notice to Flextronics, provided however, that if the date of the Initial Sale occurs after the first anniversary from the date hereof but before twenty-four months from the date hereof, then by Enphase on or after the first anniversary the Initial Sale, or (z) by either Party upon prior written notice to the other if the other Party defaults in the performance of any other material term or condition of this Agreement and such default continues unremedied for a period of 30 days after the delivery of written notice thereof by the terminating Party to the other Party. | 89Terms
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During the two (2) years prior to the date hereof, the Company has timely 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 and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “ SEC Documents ”). As of their respective dates, 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, 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 included in the SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. 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 the 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 which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company to Buyer 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 not misleading, in the light of the circumstance under which they are or were made. | 43Financial Statements
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The Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without regard to any choice of law rules thereof which might apply the laws of any other jurisdiction. | 47Governing Laws
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This Agreement is effective as of the Effective Date and shall expire on the earlier of (a) six months following the termination of Executive’s employment with the Company or (b) the first anniversary of a Change in Control, subject to the survival of certain provisions as provided in Paragraph 9(i) . The Agreement supersedes any other oral or written agreement or understanding between the Company and the Executive as to the subject matter hereof. | 89Terms
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This Agreement, including the exhibits and schedules hereto, constitutes the entire agreement of the Parties, and supersedes all other prior negotiations (whether written, verbal or otherwise), with respect to the subject matter hereof and thereof, except that the Parties acknowledge that any confidentiality agreement and/or non-disclosure agreement (if any) heretofore executed between the Company and any Consenting Lender shall continue in full force and effect in accordance with its terms. | 38Entire Agreements
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On or before the Delivery Date, the Company may require Holder (or Holder’s Beneficiary) to pay to the Company an amount the Company deems necessary to satisfy its (or an Affiliate’s) obligation to withhold federal, state, local, and foreign income or other taxes that Holder incurs as a result of the settlement of the Award. Such tax obligations may be paid by Holder (or Holder’s Beneficiary) to the Company (a) in cash, (b) by delivery of previously owned shares of Common Stock, (c) through net settlement of the Award, or (d) through any other method permitted under the Plan and approved by the Committee. If the tax obligations are satisfied through the withholding of shares of Common Stock through net settlement, the number of shares of Common Stock that may be withheld shall be limited to the number of shares of Common Stock that have an aggregate Fair Market Value on the Delivery Date equal to the aggregate amount of the tax liabilities determined based on the applicable minimum statutory withholding rates for federal, state, local, and foreign tax purposes, including payroll taxes, or such other withholding rate as determined by the Committee in its discretion if determined not to be detrimental to the Company or Holder. | 99Withholdings
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The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as otherwise set forth in the Prospectus, n o Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents that have not otherwise been satisfied or waived . Except as set forth in SEC Reports , there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary , or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary . Except as otherwise set forth in the Prospectus, t he issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities that have not otherwise been satisfied or waived . Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares . Except as set forth in the SEC Reports, t here are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. | 16Capitalization
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Each of the Parties acknowledges and agrees that the other Parties would be irreparably damaged in the event that any of the provisions of this Trust Agreement were not performed or complied with in accordance with their specific terms or were otherwise breached, violated or unfulfilled. Accordingly, each of the Parties agrees that the other Parties shall be entitled to an injunction or injunctions to prevent noncompliance with, or breaches or violations of, the provisions of this Trust Agreement by the other Parties and to enforce specifically this Trust Agreement and the terms and provisions hereof in any action instituted in accordance with Section 9.5 , in addition to any other remedy to which such Party may be entitled, at law or in equity. In the event that any action is brought in equity to enforce the provisions of this Trust Agreement, no Party will allege, and each Party hereby waives the defense or counterclaim, that there is an adequate remedy at law. The Parties further agree that (a) by seeking the remedies provided for in this Section 9.9 , a Party shall not in any respect waive its right to seek any other form of relief that may be available to a Party under this Trust Agreement, including monetary damages in the event that this Trust Agreement has been terminated or in the event that the remedies provided for in this Section 9.9 are not available or otherwise are not granted and (b) nothing contained in this Section 9.9 shall require any Party to institute any action for (or limit any Party’s right to institute any action for) specific performance under this Section 9.9 before exercising any termination right under Article VIII , nor shall the commencement of any action pursuant to this Section 9.9 or anything contained in this Section 9.9 restrict or limit any Party’s right to terminate this Trust Agreement in accordance with the terms of Article VIII or pursue any other remedies under this Trust Agreement that may be available then or thereafter. | 81Specific Performance
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The aggregate number of shares of Stock offered under the Plan, the share limit described in Section 7(c) and the price of shares that any Participant has elected to purchase will be adjusted proportionately by the Committee for any increase or decrease in the number of outstanding shares of Stock resulting from a subdivision or consolidation of shares or the payment of a stock dividend, any other increase or decrease in such shares effected without receipt or payment of consideration by the Company, the distribution of the shares of a Subsidiary to the Company’s stockholders or a similar event. | 0Adjustments
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Any payments not made when due will bear interest at the lower of (a) the *** or (b) the maximum rate permitted by law. | 54Interests
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The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares to the Purchasers or that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction. | 52Integration
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This Agreement and the Plan constitute the entire agreement of the parties hereto with regard to the subject matter hereof, and contain all the covenants, promises, representations, warranties and agreements between the parties with respect to the Phantom Units granted hereby; provided, however , that the terms of this Agreement shall not modify and shall be subject to the terms and conditions of any employment and/or severance agreement between the Partnership, the General Partner, any of the Partnership Entities or any of their respective Affiliates and Participant in effect as of the date a determination is to be made under this Agreement. Without limiting the scope of the preceding sentence, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force and effect. | 38Entire Agreements
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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. Delivery by telecopier or other electronic transmission of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement. | 26Counterparts
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Any notice hereunder by you shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company shall be given to you in writing and such notice shall be deemed duly given only upon receipt thereof at such address as you may have on file with the Company. | 65Notices
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At each Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith ("Documents"), including, without limitation, reasonable attorneys' and consultants' fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer. In respect of this Transaction, the Company shall reimburse Buyer for Buyer's expenses at each Closing, which shall be listed in the disbursement authorization and shall be included in the total funding amount. | 41Expenses
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Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered or sent if delivered in person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained), (ii) on the fifth (5th) business day after dispatch by registered or certified mail, (iii) on the next business day if transmitted by national overnight courier or (iv) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case if addressed as set forth on Schedule A attached hereto, or to any such other or additional persons and addresses as the parties may from time to time designate in a writing delivered in accordance with this Section 9.1 . | 65Notices
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The Assignor identified in Annex I hereto (the “ Assignor ”) hereby sells and assigns, without recourse, to the Assignee identified in Annex 1 hereto (the “ Assignee ”), and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Transfer Effective Date set forth in Annex 1 hereto, the interests set forth on Annex 1 hereto (the “ Assigned Interest ”) in the Assignor’s rights and obligations under the Credit Agreement, including, without limitation, the interests set forth on Annex 1 in the Commitment of the Assignor on the Transfer Effective Date and Loans owing to the Assignor which are outstanding on the Transfer Effective Date. Each of the Assignor and the Assignee hereby makes and agrees to be bound by all the representations, warranties and agreements set forth in Section 9.05 of the Credit Agreement, a copy of which has been received by the Assignee. From and after the Transfer Effective Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the interests assigned by this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the interests assigned by this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement. | 7Assignments
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The Participant acknowledges that the Restricted Stock Units are subject to modification and termination in certain events as provided in this Agreement and Section 3.2 of the Plan. | 0Adjustments
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The headings in this Agreement are intended solely for convenience or reference and shall be given no effect in the construction or interpretation of this Agreement. This Agreement shall be construed as if both Parties drafted it jointly, and shall not be construed against either Party as principal drafter. The words “include”, “includes” and “including” (and words of similar meaning) shall be deemed to be followed by the phrase “without limitation”. | 55Interpretations
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This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. This Agreement may be assigned by the Company. The Executive may not assign or delegate his duties under this Agreement without the Board’s prior written approval. Any purported assignment by the Executive without the Board’s prior written approval shall be null and void from the initial date of the purported assignment. | 7Assignments
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In the event of the invalidity of any provisions of this Agreement or if this Agreement contains any gaps, the Parties agree that such invalidity or gap shall not affect the validity of the remaining provisions of this Agreement. The Parties will replace an invalid provision or fill any gap with valid provisions which most closely approximate the purpose and economic effect of the invalid provision or, in case of a gap, the Parties’ presumed intentions. In the event that the terms and conditions of this Agreement are materially altered as a result of the preceding sentences, the Parties shall renegotiate the terms and conditions of this Agreement in order to resolve any inequities. Nothing in this Agreement shall be interpreted so as to require either Party to violate any applicable Laws. | 79Severability
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This Agreement and any claim, dispute or controversy arising out of, under or related to this Agreement, the relationship of the parties hereunder, and/or the interpretation and enforcement of the rights and obligation of the parties hereunder shall be governed by, interpreted and construed in accordance with the laws of the State of New York, without regard to choice of law principles. | 47Governing Laws
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Each Loan Party owns, or holds licenses in, all trademarks, trade names, copyrights, patents, patent rights, and licenses that are necessary to the conduct of its business as currently conducted. Attached hereto as Schedule 5.16 is a true, correct, and complete listing of all material patents, patent applications, trademarks, trademark applications, copyrights, and copyright registrations as to which each Loan Party is the owner or is an exclusive licensee. | 53Intellectual Property
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If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal, or unenforceable, that is not itself invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal, or unenforceable, that is not itself invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provisions held invalid, illegal, or unenforceable. | 79Severability
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If the Committee determines, in its discretion exercised in good faith, that the established Performance Goals are no longer suitable to the Company’s objectives because of a change in the Company’s business, operations, corporate structure, capital structure, or other conditions the Committee deems to be appropriate, the Committee may modify the Performance Goals to the extent it considers such modification to be necessary; provided, however, if the Committee still intends that such Performance Award continues to qualify as “performance-based compensation” under Section 162(m) of the Code, no such modification shall be made with respect to such Performance Award unless (i) such modification is made no later than the deadline established under Section 162(m) of the Code, and (ii) no Performance Award is paid under the modified Performance Goal until after the material terms of the modified Performance Goal are disclosed to and approved by the Company’s stockholders to the extent required by Section 162(m) of the Code. | 60Modifications
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The Employee acknowledges and agrees that (i) he has had an opportunity to seek advice of counsel in connection with this Agreement and (ii) the Restrictive Covenants are reasonable in geographical and temporal scope and in all other respects. If it is determined that any of the provisions of this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions. | 79Severability
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No Default or Event of Default shall have occurred and be continuing under the ABL Credit Agreement. | 62No Defaults
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Upon full satisfaction or other termination of the Obligations (i) the Secured Party shall release and return to Obligors all of the Collateral and any and all certificates and other documentation representing or relating to the Collateral and (ii) the security interests provided for under this Agreement shall be terminated and of no further force and effect. At Debtor’s expense, the Secured Party shall take all actions reasonably requested by Debtor in connection with the foregoing. | 88Terminations
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The Parties agree that irreparable damage, for which monetary damages would not be an adequate remedy, may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by the Parties. Prior to the termination of this Agreement pursuant to Section 7 , it is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction, in each case in accordance with this Section 12.7 , this being in addition to any other remedy to which they are entitled under the terms of this Agreement at law or in equity. | 37Enforcements
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The Credit Parties and their Subsidiaries have conducted their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions applicable to the Company and its Subsidiaries, and have instituted and maintained policies and procedures that, in the Company’s reasonable business judgment, are designed to promote and achieve compliance with such laws. | 3Anti-Corruption Laws
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Comply with all applicable Laws, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. | 19Compliance With Laws
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If an entity, it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation and has all requisite power and authority to own and operate its properties and to conduct its business, as conducted and planned to be conducted as of the date hereof. | 40Existence
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The invalidity of any portion of this Plan shall not invalidate the remainder and the remainder shall continue in full force and effect. | 79Severability
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The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of the Company, and no other proceedings on the part of the Company are necessary to authorize this Agreement or for the Company to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity. | 9Authority
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This Agreement shall he fully binding upon and enforceable with respect to the parties, and their respective representatives, successors, partners, executors, and assigns. | 84Successors
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The Company may withhold from Executive’s compensation all applicable amounts required by law. | 99Withholdings
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No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made to any Participant or person that is not expressly set forth in this Plan. | 38Entire Agreements
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Neither Party may assign, transfer or convey any right, obligation or duty, in whole or in part, or of any other interest under this Agreement relating to such Corporate Services or Transition Assistance without the prior written consent of the other Party, including any assignment, transfer or conveyance in connection with a sale of an asset to which one or more of the Corporate Services or Transition Assistance relate. All obligations and duties of a Party under this Agreement shall be binding on all successors in interest and permitted assigns of such Party. Each Party may use its Subsidiaries or Affiliates or subcontractors to perform the Corporate Services or Transition Assistance; provided , that such use shall not relieve such assigning Party of liability for its responsibilities and obligations hereunder. | 7Assignments
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The term of employment of Executive under this Agreement shall be one (1) year commencing May 1, 2017 and expiring on April 30, 2018 (the “Term”) and automatically renewed thereafter from year to year unless within 60 days prior to end of initial term or the end of any renewal year, either party gives the other written notice of its intention not to renew in which event this Agreement shall terminate at the end of the initial Term or the end of that renewal year term, subject to the provisions for early termination set forth herein. | 89Terms
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This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall be deemed an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03 . Delivery of an executed signature page to this Agreement or of a Lender Addendum by facsimile transmission, “pdf” or similar electronic copy shall be as effective as delivery of a manually signed counterpart of this Agreement. Any party hereto may request an original counterpart of any party delivering such electronic counterpart. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. | 26Counterparts
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Payment of any vested portion of the Cash Award, shall be made only in cash by the Company or an applicable Subsidiary (as determined in the sole discretion of the Company). All payments hereunder shall be made as soon as practicable after the vesting date of any portion of the Cash Award but in any event no later than thirty (30) days after such vesting date. Pending the payment or delivery of cash hereunder, the Company's obligation hereunder shall constitute an unfunded, unsecured general obligation of the Company and if applicable, any Subsidiary. | 68Payments
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This Agreement shall be governed in all respects, including validity, construction, interpretation and effect, by the laws of the State of Texas (without regard to principles of conflicts of law). | 47Governing Laws
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No amendment or waiver of any provision of this Agreement, and no consent to any departure by any Person from the terms hereof, shall in any event be effective unless it is in writing and signed by the Floor Plan Agent and the Formula Revolver Agent. In no event shall the consent of any Obligor be required in connection with any amendment or other modification of this Agreement; provided , however , that no amendment or modification of this Agreement that increases any obligation of any Obligor shall be effective against such Obligor unless such amendment or modification is in writing and signed by such Obligor. | 2Amendments
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TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE GUARANTOR AND OWNER EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS GUARANTY. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. | 96Waiver Of Jury Trials
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Each Party herein waives its respective right to any jury trial with respect to any litigation arising under, or in connection with, this Agreement. | 96Waiver Of Jury Trials
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The Parties agree that if, for any reason, a provision of this Release is held unenforceable by any court of competent jurisdiction, this Release shall be automatically conformed to the law, and otherwise this Release shall continue in full force and effect. | 79Severability
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All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including by facsimile transmission) and shall be mailed, sent, or delivered in accordance with the notice provisions contained in the Credit Agreement and to each Subordinated Creditor in care of the Borrower. | 65Notices
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All captions herein are for convenience only and shall not be interpreted as having any substantive meaning. The Exhibits to this Agreement are incorporated herein by reference and shall be deemed a part of this Agreement. Unless otherwise expressly provided herein or the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words such as “herein”, “hereof”, and “hereunder” refer to this Agreement as a whole and not merely to the particular provision in which such words appear; (c) words using the singular shall include the plural, and vice versa; (d) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “but not limited to”, “without limitation”, “inter alia” or words of similar import; and (e) references to “Article,” “Section,” “subsection”, “clause”, or other subdivision, or Exhibit, without reference to a document are to the specified provision or Exhibit of this Agreement. If the terms of this Agreement conflict with the terms of any Exhibit, the terms of this Agreement shall prevail. References to either Party include the successors and permitted assigns of that Party. The Preamble, Recitals and Exhibits are incorporated by reference into this Agreement. The Parties have each consulted counsel of their choice regarding this Agreement, and, accordingly, no provisions of this Agreement will be construed against either Party on the basis that the Party drafted this Agreement or any provision thereof. The official text of this Agreement and any Exhibit, any notice given or accounts or statements required by this Agreement, and any dispute proceeding related to or arising hereunder, will be in English. If any dispute concerning the construction or meaning of this Agreement arises, then reference will be made only to this Agreement as written in English and not to any translation into any other language. | 23Construction
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The Executive agrees and covenants that she will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Company or its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties. | 64Non-Disparagement
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The interpretation, construction and performance of this Vesting Program shall be governed by and construed and enforced in accordance with the internal laws of the State of California without regard to the principle of conflicts of laws. The invalidity or unenforceability of any provision of this Vesting Program shall not affect the validity or enforceability of any other provision of this Vesting Program, which other provisions shall remain in full force and effect. | 47Governing Laws
|
In the event that any Tax is properly chargeable on the provision of the Services as indicated on the Services Schedule, Forestar shall be responsible for and shall pay the amount of any such Tax in addition to and at the same time as the Service fees. All Service fees and other consideration will be paid free and clear of and without withholding or deduction for or on account of any Tax, except as may be required by law. | 87Taxes
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The proceeds of the Loans will be used only to repay certain existing Indebtedness, finance the working capital needs, and for general corporate purposes, of the Company and its Subsidiaries, including Permitted Acquisitions and the purchase or redemption of capital stock of the Company as permitted hereunder. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. No Borrower will request any Borrowing or Letter of Credit, and no Borrower shall use, and the Company shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) 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, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business 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 (iii) 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 Company agrees to pay the Executive a base salary (the “ Base Salary ”) at an annual rate of $380,000, payable bi-monthly in accordance with the regular payroll practices of the Company. The Executive’s Base Salary shall be subject to review and adjustment from time to time by the Board of Directors (the “ Board ”) (or a committee thereof) in its sole discretion. The base salary as determined herein from time to time shall constitute “Base Salary” for purposes of this Agreement. | 11Base Salary
|
Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation of receipt, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice. | 65Notices
|
This Agreement shall remain in full force and effect until the Termination Date; provided , that the provisions of Sections 2.3 , 2.4 , 2.5 , 2.6 , 2.7 , 5.1 , 5.2 , 5.7 , 7.10 , 7.12 , 7.13 , 7.14 , and 7.16 shall survive termination of this Agreement and any amounts payable to the Administrative Agent, the Managing Agents, the Owners or any Support Party thereunder shall remain payable thereto. | 88Terminations
|
The Property is covered by property, casualty, liability, business interruption, windstorm, flood, earthquake and other applicable Policies as and to the extent, and in compliance with the applicable requirements of Section 5.1.1 and Borrower has not taken (or omitted to take) any action that would impair or invalidate the coverage provided by any such Policies. As of the Closing Date, no claims have been made that are currently pending, outstanding or otherwise remain unsatisfied under any such policies and would reasonably be expected to have an Individual Material Adverse Effect with respect to the Property. | 51Insurances
|
Except as expressly provided to the contrary herein, each section, paragraph, part, term, or provision of this Agreement shall be considered severable, and if for any reason any section, paragraph, part, term, or provision herein is determined to be invalid and in violation of any existing or future law or regulation by a court or governmental agency having valid jurisdiction, such determination shall not impair the operation of or have any other effect on other sections, paragraphs, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, paragraphs, parts, terms, or provisions shall not be deemed to be a part of this Agreement. | 79Severability
|
If any provision of this Letter Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other Persons or circumstances. Notwithstanding the foregoing, the parties intend that the remedies and limitations thereon contained in this Letter Agreement, including Section 10 and Section 11, be construed as an integral provision of this Letter Agreement and that such remedies and limitations shall not be severable in any manner that increases liability or obligations hereunder of either party hereto or of Sponsor or of any Non-Recourse Party. | 79Severability
|
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (" .pdf ") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature. | 26Counterparts
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This Agreement may be executed in multiple counterparts, all of which shall be considered one and the same agreement, and shall become effective when each Party has received counterparts signed by each of the other Parties, it being understood and agreed that delivery of a signed counterpart of this Agreement by email (including PDF attachment) shall constitute valid and sufficient delivery thereof. | 26Counterparts
|
The Units awarded to the Participant shall, except as otherwise provided herein, become vested and non-forfeitable to the extent, but only to the extent, that the Committee determines that the applicable Performance Criteria set forth in Exhibit A have been satisfied at the end of the Performance Cycle (the “Vesting Date”). | 95Vesting
|
Except as expressly amended herein, the Letter Agreement will continue in full force and effect in accordance with its terms. The Letter Agreement, as amended by the Amendment, embodies the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, agreements and understandings, whether written or oral, with respect to the same. This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument. This Amendment is a Delaware contract and will be will be construed and enforced under and be governed in all respects by the laws of the State of Delaware, without regard to any conflict of laws principles that would result in the application of the laws of any other jurisdiction. | 59Miscellaneous
|
All communications, notices, consents, waivers, and other communications under this Agreement, the MSR Purchase Agreement and the Sale Supplements must be in writing and be given in person or by means of facsimile or email (with request for assurance of receipt in a manner typical with respect to communications of that type), by overnight courier or by mail, and shall become effective: (a) on delivery if given in person; (b) on the date of transmission if sent by facsimile or email; (c) one (1) Business Day after delivery to the overnight service; or (d) four (4) Business Days after being mailed, with proper postage and documentation, for first-class registered or certified mail, prepaid. | 65Notices
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This Agreement and the other Loan Documents embody the entire agreement and understanding among the Credit Parties, the Administrative Agent and the Lenders relating to the subject matter hereof and, subject to Section 10.28 , supersede all prior proposals, agreements and understandings relating to the subject matter hereof. Any conflict between the provisions of this Agreement and the provisions of any other Loan Documents shall be governed by the provisions of this Agreement. The Credit Parties certify that they are relying on no representation, warranty, covenant or agreement except for those set forth in this Agreement and the other Loan Documents. | 38Entire Agreements
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This Amendment may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. | 26Counterparts
|
The Revolving Line terminates on the Maturity Date and the principal amount of all Revolving Advances, the unpaid interest thereon, and all other Note Indebtedness relating to the Revolving Line shall be immediately due and payable. | 88Terminations
|
The closing of the transactions contemplated in this Agreement (the “Closing”) shall take place remotely via the exchange of signatures on September 1, 2017 or as soon as practicable thereafter, following the satisfaction or waiver by the applicable Party of each of the conditions set forth in Section 3. The date on which the Closing shall take place is herein referred to as the “Closing Date”. | 18Closings
|
The Borrower and Related Party represent and warrant to the Lender that each statement made in this Agreement and in any other document provided to the Lender in connection with the Loan is true, complete and accurate in all material respects. The Borrower and Related Party will strictly observe and perform each of the covenants and obligations set out herein except to the extent that the Lender may from time to time in its absolute discretion, by prior written notice or consent, waive such compliance. | 46General
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The Collateral Agent shall not by any act (except by a written instrument pursuant to Section 13 hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the Collateral Agent, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Collateral Agent of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Collateral Agent would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law. | 63No Waivers
|
Any notice required by the terms of the Notice, this Award Agreement and the Plan shall be given (i) in writing addressed to the Company at its principal executive office and will be deemed effective upon actual receipt when delivered by personal delivery or by registered or certified mail, with postage and fees prepaid, or (ii) by electronic transmission to the Company’s e-mail address of the Company’s Vice President of Human Resources and will be deemed effective upon actual receipt. Any notification required by the terms of the Notice, this Award Agreement and the Plan will be given by the Company (x) in writing addressed to the address that the Participant most recently provided to the Company and will be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid, or (y) by facsimile or electronic transmission to the Participant’s primary work fax number or e-mail address (as applicable) and will be deemed effective upon confirmation of receipt by the sender of such transmission. | 65Notices
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All notices and other communications required or permitted hereunder shall be in writing and shall be delivered personally, mailed by first class mail, postage prepaid, or delivered by courier or overnight delivery, addressed (a) if to a Purchaser, at such Purchaser’s address set forth on the Schedule of Purchaser, or at such other address as such Purchaser shall have furnished to the Company in writing, or (b) if to the Company, at its address set forth at the beginning of this Agreement, or at such other address as the Company shall have furnished to the Purchaser in writing. Notices that are mailed shall be deemed received five (5) days after deposit in the United States mail. Notices sent by courier or overnight delivery shall be deemed received two (2) days after they have been so sent. | 65Notices
|
The Company agrees to indemnify you and hold you harmless to the fullest extent permitted by law for any action or inaction by you while serving as an executive officer and director of the Company or, at the Company’s request, as an executive officer or director of any other entity or as a fiduciary of any benefit plan. The Company shall cover you under directors’ and officers’ liability insurance after the Transition Date in the same amount and to the same extent as the Company covers its other executive officers and directors. | 49Indemnifications
|
Receipt by the Administrative Agent and the Lenders of (i) pro forma projections of financial statements (balance sheet, income and cash flows) for each of the fiscal years of the Consolidated Parties through December 31, 2022 and (ii) such other information relating to the Consolidated Parties as the Administrative Agent may reasonably require in connection with the structuring and syndication of credit facilities of the type described herein. | 43Financial Statements
|
The consummation of the sale by Seller and purchase by Purchaser of the Property (the “ Closing ”) shall be held on or before 2:00 p.m. Eastern Daylight Saving Time July 27, 2017, time being of the essence with respect to Purchaser’s obligation to close on such date; provided, however, that Seller shall be entitled to one or more adjournments of the Closing (not to exceed Fifteen (15) Business Days in the aggregate), by providing Purchaser written notice of its election to adjourn Closing, and for how long, at least Three (3) Business Days prior to Closing. The Closing shall take place by mail through the Escrow Agent. The date of the Closing is sometimes referred to as the “ Closing Date .” If any Tenant Estoppel Certificates would have been timely as of the initial Closing Date, then such certificates shall be deemed timely at any subsequent Closing Date following an adjournment of the Closing Date permitted hereunder. It is contemplated that the transaction shall be closed with the concurrent delivery of the documents of title and the payment of the Purchase Price. | 18Closings
|
The Participant acknowledges that as of the Grant Date, this Agreement and the Plan set forth the entire understanding between the Participant and the Company regarding the acquisition of the RSUs and the underlying Common Shares and supersede all prior oral and written agreements on that subject. Notwithstanding the foregoing, to the extent that the Participant has signed any restrictive covenant agreements with the Company or any of its Affiliates (including, but not limited to, any confidentiality, intellectual property rights assignment, non-competition, non-solicitation and non-disparagement agreements), such restrictive covenant agreements shall remain in full force and effect. | 38Entire Agreements
|
Agent may set up standards and procedures to determine or redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by any Credit Party. Any such determination or redetermination by Agent shall be conclusive and binding for all purposes, absent manifest error. No determination or redetermination by any Secured Party or any Credit Party and no other currency conversion shall change or release any obligation of any Credit Party or of any Secured Party (other than Agent and its Related Persons) under any Loan Document, each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted. Agent may round up or down, and may set up appropriate mechanisms to round up or down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds. | 68Payments
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The Borrower and each Guarantor will cooperate with the Agent and the Lenders and execute such further instruments and documents as the Lenders or the Agent shall reasonably request to carry out to their satisfaction the transactions contemplated by this Agreement and the other Loan Documents. | 45Further Assurances
|
All costs and expenses incurred in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby shall be paid by the party incurring or required to incur such expenses whether or not the transactions contemplated by this Agreement are consummated; provided that New Black Knight shall pay, or cause to be paid, or reimburse the Interested Holders for all fees and expenses incurred by them pursuant to Section 6.5(a) of the Merger Agreement. | 41Expenses
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The obligations imposed by, and the provisions of, this Agreement are severable and should be construed independently of each other. The invalidity of one provision shall not affect the validity of any other provision. | 79Severability
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Executive acknowledges that this Agreement provides Executive with rights and privileges to which Executive would not otherwise be entitled in the absence of the execution of a waiver and release, and, in exchange for the same, Executive agrees to take action to timely execute a full and complete release of claims against the Company, its affiliates, officers and directors in the form attached hereto as Exhibit B (the “ Release ”). Notwithstanding any provision herein to the contrary, if Executive has not delivered to the Company an irrevocable Release and resignation notice(s) for each applicable affiliate and subsidiary of the Company for which the Executive serves as an officer or director executed by or on behalf of Executive on or before the sixtieth (60th) day after the Termination Date, or if the Release is subsequently revoked, Executive shall have no rights to the payments and benefits specified in Sections 2(b), 2(c), 3, 4(a), 4(b), 5, 7, and 8 hereof. | 74Releases
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The General Partner shall keep, or cause to be kept, appropriate books and records with respect to the Partnership’s business, including all books and records necessary to provide any information, lists and copies of documents required to be provided pursuant to Section 7.2 or pursuant to applicable laws. All matters concerning (i) the determination of the relative amount of allocations and distributions among the Partners pursuant to Articles III and IV not specifically and expressly provided for by the terms of this Agreement, and (ii) accounting procedures and determinations, and other determinations not specifically and expressly provided for by the terms of this Agreement, shall be determined by the General Partner, which determination shall be final and conclusive as to all of the Partners absent manifest clerical error. Each Partner shall have the same right to inspect the books and records of the Partnership upon five ( 5 ) days’ written notice and shall have all rights that a shareholder of a Delaware corporation has to inspect and the books and records of a Delaware corporation in which such shareholder owns capital stock. In addition, the Investor Representative shall be entitled to cause the books and records of the Partnership to be audited by an independent third party; provided , however , that any such audit shall be conducted during the normal business hours of the Partnership, shall not substantially interfere with the operations of the Partnership and shall not cause the Partnership or any of the Directors, officers or employees of the General Partner to take any actions other than those reasonably necessary to facilitate such audit; provided further , that in the event any material noncompliance with GAAP or the Partnership’s stated accounting policies and procedures are discovered during any such audit or if such audit uncovers an underpayment to the Preferred Partners or uncovers any other breach of this Agreement, then the Partnership shall reimburse the Preferred Partners that requested such audit for all reasonable, documented out-of-pocket costs incurred by such Preferred Partners as a result of such audit. The audit rights contemplated by the immediately preceding sentence shall not be exercisable more than once per year. | 73Records
|
The obligation of Sponsor to fund the Commitments will terminate automatically and immediately upon the earliest to occur of (a) the Closing (at which time the obligation shall be discharged), (b) the termination of the Merger Agreement in accordance with its terms and (c) the Company or any of its Affiliates or Representatives asserting any claim against Sponsor in connection with the Merger Agreement or any of the transactions contemplated hereby or thereby (other than any claim relating to a breach or seeking to prevent a breach of the Blackstone Letter Agreement or the Confidentiality Agreement, any claim under the Blackstone Fund Limited Guaranty, any claim under the GSO Limited Guaranty or any claim by the Company seeking an injunction or other specific performance (i) against CF Corp, Parent or Merger Sub under the Merger Agreement, (ii) against Sponsor under this Letter Agreement as contemplated by Section 2 hereof, (iii) against CFS Holdings (Cayman), L.P. under the Forward Purchase Agreement among CF Corp, CFS Holdings (Cayman), L.P. and CF Capital Growth, LLC, (iv) against GSO Fund under the Equity Commitment Letter between GSO Fund and CF Corp, (v) against Sponsor under the Equity Commitment Letter among Sponsor, Fidelity National Financial, Inc. and CF Corp or (vi) against CFS Holdings (Cayman), L.P. under the Voting Agreement). For the avoidance of doubt, nothing in this Letter Agreement shall be deemed to limit the ability of the Company to bring claims against CF Corp, Parent or Merger Sub under the Merger Agreement (and the obligations of Sponsor to fund the Commitments will not terminate as a result of any such claim). | 88Terminations
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