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TO THE FULLEST EXTENT PERMITTED BY LAW, LENDER AND BORROWER HEREBY VOLUNTARILY, UNCONDITIONALLY AND IRREVOCABLY WAIVE TRIAL BY JURY IN ANY LITIGATION OR PROCEEDING IN A STATE OR FEDERAL COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR THE OTHER TERM LOAN DOCUMENTS OR THE SECURED OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT LIMITATION, CLAIMS RELATING TO THE APPLICATION OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH OF DUTY), BETWEEN LENDER AND BORROWER. | 96Waiver Of Jury Trials
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Executive agrees to cooperate and assist in the investigation, prosecution or defense of any potential claims or concerns regarding Company's or any affiliates' business about which he has relevant knowledge, including: (i) by providing truthful information and testimony as reasonably requested by Company; and (ii) by providing truthful information and testimony with Government Agencies on matters pertaining to any investigation, litigation or administrative proceeding concerning Company or its affiliates. Company will reimburse Executive for reasonable time, travel and out‑of‑pocket expenses incurred in providing such cooperation and assistance after the Separation Date. | 24Cooperation
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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 shall constitute one and the same document. Executed copies hereof may be delivered by facsimile or by email in a PDF attachment, and upon receipt, shall be deemed originals and binding upon the parties hereto. Without limiting or otherwise affecting the validity of executed copies hereof that have been delivered by facsimile or by email in a PDF attachment, the parties shall use diligent efforts to deliver originals as promptly as possible after execution. | 26Counterparts
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Whenever the Borrower desires the issuance, amendment, extension or renewal of a Letter of Credit, it shall deliver to the Issuing Bank, with a copy to the Administrative Agent, an Issuance/Amendment Notice no later than 12:00 p.m. (New York City time) at least five Business Days, or in each case such shorter period as may be agreed to by the Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon satisfaction or waiver of the applicable conditions set forth in Section 4.02 , the Issuing Bank shall issue or implement such requested Letter of Credit or such amendment, extension or renewal only in accordance with the Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or amendment, extension or renewal to a Letter of Credit, the Issuing Bank shall promptly notify the Administrative Agent and the Borrower thereof, in writing, which notice shall be accompanied by a copy of such Letter of Credit or such amendment, extension or renewal. | 2Amendments
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(a) Each of the Companies and their Subsidiaries has complied and is in compliance, in all material respects, with the Sanctions Laws and Regulations and with the United States Foreign Corrupt Practices Act of 1977, as amended and any similar laws, rules or regulations issued, administered or enforced by any Governmental Authority having jurisdiction over any of the Companies and their Subsidiaries (“ Anti-Corruption Laws ”). No Borrowing or Letter of Credit, or use of any part of the proceeds of any Loan, will violate or result in the violation of any Sanctions Laws and Regulations or any Anti-Corruption Laws applicable to any party hereto. | 3Anti-Corruption Laws
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All notices, demands requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. The addresses for such communications shall be: (i) if to the Company, to: GT Biopharma, Inc., Attn: Chief Financial Officer, 4100 South Ashley Drive, Suite 600, Tampa, FL 33602, and (ii) if to the Warrant Holders, to the addresses as indicated on the signature pages attached hereto. | 65Notices
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Consultant shall deliver to the Company no later than the 10 th day of each month an invoice for the costs and expenses incurred during the preceding month that are reimbursable under Section 2 and outlining the services performed and reimbursable costs and expenses incurred. Payment for each invoice shall be made by the Company within 30 days of its receipt. Such payment of reimbursable costs and expenses to Consultant will represent the full and final payment for such services rendered by Consultant to the Company. | 68Payments
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Energen agrees to pay promptly as incurred, to the full extent permitted by law, all legal, accounting and other professional fees and expenses (“Professional Fees”) which Executive may reasonably incur (i) as a result of any contest (regardless of the outcome thereof) by Energen, Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by Executive about the amount of any payment pursuant to this Agreement); or (ii) as a result of any contest by a taxing authority of Executive’s tax treatment of any amounts received under this or any other Employer agreement or plan to the extent such tax treatment is consistent with the determinations made under Section 5. | 41Expenses
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None of the Borrower, BPI or any Subsidiary will, directly or knowingly indirectly use the proceeds of any Loan or use any Letter of Credit for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions. | 3Anti-Corruption Laws
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This Guaranty shall amend and restate the Existing Guaranty. Each Guarantor intends that this Guaranty shall not cause a novation of the obligations of such Guarantor under the Existing Guaranty, nor shall it extinguish, terminate or impair the obligations or the rights or remedies of the Administrative Agent under the Existing Guaranty, or any other Credit Document, which shall continue in full force and effect in favor of the Administrative Agent and the Lenders. Except as expressly amended hereby, the Existing Guaranty shall continue in full force and effect in accordance with the provisions thereof on the date hereof, and each Guarantor ratifies and reaffirms the guarantee of the Guaranteed Obligations by such Guarantor in favor of the Administrative Agent for the benefit of the Lenders. Any reference to the Existing Guaranty herein (including in relation to any amounts guaranteed by this Guaranty) shall refer to this Guaranty, as amended and restated. | 2Amendments
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Borrower will execute and deliver all such further instruments and do all such further acts and things as Lender may reasonably request in order to fully effectuate the purposes, terms and conditions of this Agreement and the consummation of the transactions contemplated hereby including, without limitation, giving all Obligors written notification of its assignment of Accounts to Lender. | 45Further Assurances
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For purposes of this Note, the following definitions apply. Capitalized terms not otherwise defined herein shall have the meanings given in the Membership Agreement dated of or around even date herewith. | 28Defined Terms
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The Tenant shall arrange at the Tenant's expense and submit to the Landlord copies of its audited annual Financial Statements and the report of its auditors as soon as available and in any event within one hundred and twenty (120) days after the close of every financial year of the Tenant (beginning with the current one). | 43Financial Statements
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Subject to Section 3, a Participant will be 100% vested if he remains employed with the Company or any Affiliate or Subsidiary on February 29, 2020 (the “Vesting Date”). For purposes of the Agreement, the “Vesting Period” is the period from the first day of the calendar month that includes the Date of Grant through the Vesting Date. Notwithstanding the foregoing, a Participant who meets the criteria to terminate employment due to Retirement (as provided in Section 3(a)) shall be 100% vested as of the date the Participant meets such criteria (irrespective of whether the Participant terminates employment due to Retirement). | 95Vesting
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Except as the Committee may at any time otherwise provide, if Participant incurs a Disability (as such term is defined in the Plan) prior to the Vesting Date, then all unvested Shares subject to the Award shall become vested and nonforfeitable and payout of the Shares shall be made at the Target Award payout level (100%) as soon as practicable after the Committee determines that Participant has suffered a Disability, as provided in Section 8. | 30Disability
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The validity, interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflict of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereby agree that any action, proceeding or claim against a party arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. | 4Applicable Laws
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This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser, the Company, the Purchaser Representative and the Seller Representative. | 2Amendments
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All representations, warranties, covenants, conditions and agreements contained herein which either are expressed as surviving the Expiration Date or which, by their nature, are to be performed or observed, in whole or in part, after the termination or expiration of this Lease, shall survive the termination or expiration of this Lease. | 85Survival
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The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. | 85Survival
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This Agreement (including Appendix “A,” Appendix “B”, and Appendix “C” as each may be amended from time to time) contains the entire agreement and supersedes all prior agreements and understandings, oral or written, with respect to the subject matter hereof, including without limitation the Existing Employment Agreement. This Agreement may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge is sought. | 38Entire Agreements
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If Executive breaches any of the provisions contained in Paragraphs 5, 6 or 7 above, Company shall have the right to immediately terminate all payments and benefits due under this Agreement and shall have the right to seek injunctive relief. Executive acknowledges that such a breach of Paragraphs 6, 7, or 8 would cause irreparable injury and that money damages would not provide an adequate remedy for Company. | 75Remedies
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Any Lender may at any time, without the consent of, or notice to, Borrower, but subject to the prior written consent of Administrative Agent, sell participations to a Participant in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrower, Administrative Agent, and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.1(b) without regard to the existence of any participation. | 67Participations
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This Agreement shall be deemed to be a contract under the Laws of the State of Ohio without regard to its conflict of laws principles. Each standby Letter of Credit issued under this Agreement shall be subject either to the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ ICC ”) at the time of issuance (“ UCP ”) or the rules of the International Standby Practices (ICC Publication Number 590) (“ ISP98 ”), as determined by the Issuing Lender, and each trade Letter of Credit shall be subject to UCP, and in each case to the extent not inconsistent therewith, the Laws of the State of Ohio without regard to its conflict of laws principles. | 47Governing Laws
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Debtor shall, at its expense, keep its business and assets (including the Collateral to the extent appropriate), and the business and assets of any subsidiary, insured as provided in the NPA. All insurers and insurance coverage shall be reasonably acceptable to the Secured Party. If Debtor at any time fails to obtain or maintain any insurance as required under this Agreement, the Secured Party may (but shall not be obligated to) obtain insurance comparable in cost and with coverage in such amounts and types as the insurance coverage required to be maintained by Debtor pursuant hereto, including if it so chooses “single interest insurance,” which will cover the Secured Party’s interest in the Collateral for its benefit. If any such insurance is obtained by the Secured Party, the cost thereof shall constitute Secured Party Expenses. | 46General
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The Interests that are the subject of this Option Agreement shall vest upon the Effective Date and are exercisable respectively for a period of eighteen months, until January 19, 2019. All interests purchased pursuant to the Agreement will bear a Rule 144 restrictive legend and shall be Restricted Common Stock within the meaning of Rule 144 of the Securities Act, as that term is defined in Title 17 Part 230.144 of the Federal Code of Regulations. As such, the interests may not be resold in the public markets or transferred unless Company registers them under Section 5 of the Securities Act, or has received an opinion of counsel reasonably satisfactory to Company that such resale or transfer is exempt from the registration requirements of the Securities Act. | 95Vesting
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This Assignment may be executed in counterparts, which taken together shall constitute one original instrument. | 26Counterparts
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The Employee’s employment under this Agreement will terminate upon his death. | 27Death
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Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or 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 Revolving Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi) )) or (ii) the determination by 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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The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will not violate any Requirement of Law applicable to any Loan Party or any Subsidiary, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Loan Party or any Subsidiary or the assets of any Loan Party or any Subsidiary, or give rise to a right thereunder to require any payment to be made by any Loan Party or any Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of any Loan Party or any Subsidiary, except Liens created pursuant to the Loan Documents, except, with respect to clauses (b) and (c) of this Section 3.03, to the extent that such breach, contravention or violation would not reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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Borrowers shall use the proceeds of the Loans solely for (a) transaction fees incurred in connection with the Financing Documents and the payment in full on the Closing Date of certain existing 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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This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic exchange bearing the copies of a party's signature shall constitute a valid and binding execution and delivery of this Agreement by such party. Such electronic copies shall constitute enforceable original documents. | 26Counterparts
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Except as may otherwise be provided by the Committee either in the Award Agreement or in writing after the Award Agreement is issued, a grantee’s right in all Restricted Stock Units that have not vested shall automatically terminate upon the grantee’s cessation of Service Relationship with the Company and any Subsidiary for any reason. | 88Terminations
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Subject to the terms and conditions set forth herein, the Borrower Representative may request the issuance of Letters of Credit denominated in Dollars or an LC Alternative Currency (in the case of U.S. Letters of Credit) for the account of the U.S. Borrowers or Letters of Credit denominated in Dollars, Canadian Dollars or an LC Alternative Currency (in the case of any Canadian Letter of Credit) for the account of the U.S. Borrowers or the Canadian Borrower, in a form reasonably acceptable to the Applicable Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by any Borrower to, or entered into by any Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. For the avoidance of doubt, subject to Section 2.06(n) any Letter of Credit hereunder for the account of the U.S. Borrowers or the Canadian Borrower may be for the benefit of any Subsidiary whether or not a U.S. Borrower or a Canadian Borrower. | 46General
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(a) The U.S. Borrower agrees to pay to the Administrative Agent for the account of each U.S. Revolving Lender a commitment fee, which shall accrue at a rate equal to (i), if the average daily unused portion of the U.S. Commitments is greater than 50% of the total U.S. Commitments during the period in respect of which the payment is being made, 0.375% per annum, and (ii), if the average daily unused portion of the total U.S. Commitments is less than or equal to 50% of the total U.S. Commitment during the period in respect of which the payment is being made, 0.25% per annum, in each case on the average daily amount such U.S. Revolving Lender's Applicable Percentage of the Available U.S. Commitment during the period from and including the Effective Date to but excluding the date on which the U.S. Revolving Lenders’ U.S. Commitments terminate. The U.S. Borrower agrees to pay to the Administrative Agent for the account of each Tranche B Revolving Lender a commitment fee, which shall accrue at a rate equal to (i), if the average daily unused portion of the Tranche B Commitments is greater than 50% of the total Tranche B Commitments during the period in respect of which the payment is being made, 0.375% per annum, and (ii), if the average daily unused portion of the total Tranche B Commitments is less than or equal to 50% of the total Tranche B Commitment during the period in respect of which the payment is being made, 0.25% per annum, in each case on the average daily amount such Tranche B Revolving Lender's Applicable Percentage of the Available Tranche B Commitment during the period from and including the Effective Date to but excluding the date on which the Tranche B Revolving Lenders’ Tranche B Commitments terminate. The U.S. Borrower agrees to pay to the European Administrative Agent for the account of each Tranche C Revolving Lender a commitment fee, which shall accrue at a rate equal to (i), if the average daily unused portion of the Tranche C Commitments is greater than 50% of the total Tranche C Commitments during the period in respect of which the payment is being made, 0.375% per annum, and (ii), if the average daily unused portion of the total Tranche C Commitments is less than or equal to 50% of the total Tranche C Commitment during the period in respect of which the payment is being made, 0.25% per annum, in each case on the average daily amount such Tranche C Revolving Lender's Applicable Percentage of the Available Tranche C Commitment during the period from and including the Effective Date to but excluding the date on which the Tranche C Revolving Lenders’ Tranche C Commitments terminate. Accrued commitment fees shall be payable in arrears on the first day of each January, April, July and October and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed. | 42Fees
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Except as set forth in Schedule 7.1(c) , none of the execution or delivery of this Agreement by the Company, the consummation of the transactions contemplated herein, or the performance of or compliance with the terms and provisions hereof by the Company will: (i) violate or conflict with any provision of the Certificate of Incorporation or Bylaws of the Company or the applicable organizational documents of any of its Subsidiaries; (ii) violate any law, regulation (including Regulation G, T, U or X), order, writ, judgment, injunction, decree or permit applicable to the Company or any of its Subsidiaries; (iii) trigger, implicate or give rise to any right or obligation under any MFN Agreement; (iv) violate or conflict with any terms or provisions of, or cause an event of default or trigger, implicate or give rise to any right or obligation under, any agreement, instrument or contract to which the Company or any of its Subsidiaries is a party; or (v) result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to its or its Subsidiaries’ properties or assets; except, in the case of clauses (ii), (iv) or (v), any such conflicts, violations, breaches, defaults or other occurrences that, individually or in the aggregate, would neither (A) be reasonably likely to materially and adversely affect the Company and its Subsidiaries nor (B) prevent, materially delay or materially impede the ability of the Company to consummate the transactions contemplated herein, or perform or comply with the terms and provisions hereof). | 61No Conflicts
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During the Employment Term, Executive shall serve as interim President and Chief Executive Officer of the Company and shall report solely to the Board. Executive agrees that he shall perform his duties faithfully and efficiently and to the best of his abilities, subject to the directions of the Board. Executive shall devote Executive’s full business time and efforts to the performance of Executive’s assigned duties for the Company. Notwithstanding the foregoing, Executive may continue to serve on the boards of directors of Southcross Holdings GP LLC and Midstates Petroleum Company, Inc. During the Employment Term, the Company shall provide Executive with an office and administrative support at the Company’s headquarters commensurate with his position. | 32Duties
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The following definitions shall apply herein: ” is defined in Paragraph 13 below. | 29Definitions
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No Affiliate of the Company (a) owns or has any interest in any property (real or personal, tangible or intangible), Company Intellectual Property or Contract used in or pertaining to the business of, the Company, (b) has any Action against the Company or (c) owes any money to, or is owed any money by (other than, with respect to any Affiliate who is an employee of the Company, wages payable in the Ordinary Course of Business), the Company. Neither the Company nor, to the Company’s knowledge, any Affiliate of the Company, nor, to the Company’s knowledge, any officer, director or employee of the Company, possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any Person that is a supplier, lessor or lessee of the Company. Ownership of securities of a Person whose securities are registered under the Securities Exchange Act of 1934, as amended, of three percent (3%) or less of any class of such securities shall not be deemed to be a financial interest for purposes of this Section 5.23. | 91Transactions With Affiliates
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No provision hereof shall be modified or limited except by a written agreement expressly referring hereto and to the provision so modified or limited and signed by all parties to this Agreement, and without limiting the foregoing, no course of conduct, usage of trade or law merchant shall modify or limit any provision hereof. | 60Modifications
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The Lenders, the Lead Arrangers and each Agent shall have received all fees required to be paid, and all reasonable expenses for which invoices have been presented (including, without limitation, the reasonable fees, disbursements and other charges of counsel to the Agents), on or before the Closing Date. All such amounts may be paid with proceeds of Loans made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date. | 42Fees
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Consistent with Company’s policy for executive employees, the Executive will not accrue paid vacation but will be entitled to take vacation in accordance with the Company’s Flexible Time Away Policy, in consultation with the Board. | 93Vacations
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The Company shall pay the Executive an annual rate of base salary of $600,000.00 in periodic installments in accordance with the Company’s customary payroll practices, but no less frequently than monthly. The Executive’s base salary shall be reviewed at least annually by the Board and the Board may, but shall not be required to, increase the base salary during the Employment Term. The Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as “ Base Salary ”. | 11Base Salary
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In the event of Buyer has been unable to satisfy its conditions to Closing on or before the Closing Date, Seller may retain the Earnest Money Deposit, and the Nonrefundable Payment if then paid, as its sole damages. Buyer and Seller hereby acknowledge and agree that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by the Seller. In such event, Seller agrees that Buyer shall have the right, in addition to any other rights it may have (whether at law or in equity), to seek specific performance and injunctive relief as a remedy for any such breach of this Agreement. No failure or delay by any party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. | 75Remedies
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Each party’s obligations under this Section 2.09 shall survive the resignation or replacement of Lender or any assignment of rights by, or the replacement of, Lender, the termination of the Commitment and the repayment, satisfaction or discharge of all obligations under any Credit Document. | 85Survival
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Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at and after the Plan Effective Time, to the extent such Subsidiary remains a Subsidiary of the applicable Party. | 83Subsidiaries
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This Agreement may be executed in any number of counterparts with the same effect as if Producer and Gavilon had signed the same document and all counterparts will be construed together and constituted as one and the same instrument. | 26Counterparts
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Tenant represents and warrants that it has not dealt with any broker or agent in the negotiation for or the obtaining of this Amendment, other than Kidder Mathews (“ Broker ”), and agrees to reimburse, indemnify, save, defend (at Landlord’s option and with counsel reasonably acceptable to Landlord, at Tenant’s sole cost and expense) and hold harmless Landlord and its affiliates, and their respective employees, agents, contractors and lenders, for, from and against any and all cost or liability for compensation claimed by any such broker or agent, other than Broker, employed or engaged by it or claiming to have been employed or engaged by it. Broker is entitled to a leasing commission in connection with the making of this Amendment, and Landlord shall pay such commission to Broker pursuant to a separate agreement between Landlord and Broker. | 15Brokers
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Upon termination of this Agreement pursuant to Section 8.2 (but for clarity, not in the case of its Expiration), and upon the request of the disclosing Party, the receiving Party shall promptly return to the disclosing Party or destroy all copies of Confidential Information received from such Party, and shall return or destroy, and document the destruction of, all summaries, abstracts, extracts, or other documents which contain any Confidential Information of the other Party in any form, except that each Party shall be permitted to retain a copy (or copies, as necessary) of such Confidential Information for archival purposes or to enforce or verify compliance with this Agreement, or as required by any applicable law or regulation. | 88Terminations
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This Agreement may not be amended, modified or waived, in whole or in part, except by an agreement in writing signed by each of the parties hereto. | 2Amendments
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This Plan shall be governed in all respects, whether as to validity, construction, capacity, performance or otherwise, under the laws of the State of Michigan, except to the extent superseded by federal law. | 47Governing Laws
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During the Term, in exchange for Executive’s satisfactory performance of Executive’s duties and responsibilities Executive will initially be paid a Base Salary at the rate of $300,000 per annum, payable in accordance with the Company’s regular salary payment schedule and subject to applicable taxes and withholdings. The Base Salary of the Executive for subsequent years of this Agreement may be increased, decreased, or may stay the same, depending on the Executive’s performance and the performance of the Company. | 11Base Salary
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This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive to any third party; provided , however , that Executive may designate pursuant to Section 18.6 one (1) or more beneficiaries to receive any amounts that would otherwise be payable hereunder to Executive’s estate. Employer may assign all or any portion of its rights and obligations hereunder to any other member of the Emmis Group or to any successor or assignee of Employer pursuant to a reorganization, recapitalization, merger, consolidation, sale of substantially all of the assets or stock of Employer, or otherwise. | 7Assignments
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There is no pending Action against the SOJA Shareholder that involves the SOJA Shares or that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement or the business of SOJA and, to the knowledge of the SOJA Shareholder, no such Action has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Action. | 58Litigations
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The closing of the purchase and sale of the Shares (the "Closing") shall be held at the offices of the Purchaser on or before 5:00 P.M. EST on March 31, 2017 or at such other time and place as the Company and the Purchaser may agree in writing (the "Closing"). | 18Closings
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This Agreement constitutes the entire agreement between the parties with respect to the Award, and, except as provided in Paragraph 12, supersedes and cancels any other agreement, representation or communication, whether oral or in writing, between the parties relating to the Award, provided that the Agreement shall be at all times subject to the Plan. | 38Entire Agreements
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Goodwin shall continue to be entitled to indemnification, advancement of expenses and reimbursement to the extent permitted to him under the Company’s Articles of Incorporation and By-Laws. | 49Indemnifications
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This Assignment Agreement and the attached consent embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings between the parties hereto relating to the subject matter hereof. | 38Entire Agreements
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Any notice, request, demand or other communication hereunder shall be in writing, shall be delivered by nationally recognized overnight delivery service, postage prepaid, to the addressee at the address set forth below (or at such other address as shall be designated hereunder by written notice to the other party hereto). Notice shall be deemed received one day after dispatch by such overnight service. | 65Notices
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Except in the case of SSN, for the Existing Litigation, each Party represents and warrants to the other Party that there is no litigation or governmental proceeding or investigation pending or, to the knowledge of such Party, threatened against such Party, that may call into question the validity of this Agreement, or hinder this Agreement’s enforceability or the performance by such Party under this Agreement. | 58Litigations
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Commencing on the Effective Date of this Agreement, Executive shall diligently render his services to the Company as Executive Vice President, Chief Information and Administrative Officer in a manner customary for such officers or equivalent positions, and shall use his best efforts and good faith in fulfilling such responsibilities and in accomplishing such directives. Executive agrees to devote his full-time efforts, abilities, and attention to the business of the Company, and shall not engage in any activities which will interfere with such efforts. Executive shall well and faithfully serve the Company during the continuance of his employment hereunder and shall use his best efforts to promote the interests of the Company. | 32Duties
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The Committee may amend this Agreement at any time and from time to time without the consent of the Participant; provided, however that no such amendment may materially and adversely affect the rights of the Participant without his or her consent; and provided, further, that the Company may change or modify this Agreement without the Participant’s consent or signature if the Company determines, in its sole discretion, that such change or modification is necessary for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder. Notwithstanding the preceding sentence, the Company may amend the Plan to the extent permitted by the Plan. | 60Modifications
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Any notices provided for in this Agreement or the Plan will be given in writing and will be deemed effectively given upon receipt or, in the case of notices delivered by mail by the Company to you, five days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. Notwithstanding the foregoing, the Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and your PSU Grant by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company. | 65Notices
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All covenants, agreements, representations and warranties made by the Issuer herein and in the certificates, reports, notices or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the other Note Documents and the issuance and purchase of any Notes, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Collateral Agent or any Purchaser may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Note or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15 , 2.16 , 2.17 , and 10.3 and Article IX shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Notes, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof. | 85Survival
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Employee is engaged and shall serve as one of the five directors sitting on the Board and President and Chief Executive Officer of Employer and any other direct or indirect subsidiaries of Employer that may be formed or acquired. It is the current intention of the Employer to have Employee serve Chairman of the Board, for a term to be determined at the pleasure of the Board. Employee shall have such other duties and hold such other offices as may from time to time be reasonably assigned to him by the Board. These services shall be provided from offices located in Scottsdale, Arizona or such other location as may be mutually agreed. | 32Duties
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This Agreement may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimile or other form of electronic transmission shall be deemed to be an original signature hereto. | 26Counterparts
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This Agreement, together with the Protection Agreement and the Non-Compete Agreement, constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof, including, but not limited to, any rights to any severance and/or change in control benefits set forth in Executive’s original offer letter, any prior severance agreement, [including Executive’s Change in Control and Severance Agreement with the Company dated [ ],] and/or any accelerated vesting terms set forth in an individual Equity Award agreement. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless it is in a writing that specifically mentions this Agreement and that is signed by Executive and by an authorized officer of the Company (other than Executive). | 38Entire Agreements
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This Third Amendment shall be governed by and construed in accordance with the laws applicable to the Credit Agreement. | 47Governing Laws
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Transactions with Affiliates . The Borrower will not, and will not permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties; (b) transactions between or among the Borrower and the Subsidiaries (or between or among two or more Subsidiaries) not involving any other Affiliate; and (c) compensation arrangements for directors or executive officers approved by the Board of Directors of the Borrower or the compensation committee of such Board of Directors; provided that nothing contained in this Section shall prevent the Borrower from paying dividends or making other cash distributions to its stockholders. | 91Transactions With Affiliates
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In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable by reason of its scope or breadth, it shall be valid and enforceable only to the extent of the scope or breadth permitted by law. | 79Severability
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Prior to the Closing, the Seller shall obtain the Consents, waivers and approvals, and timely provide notices, under the Contracts, Leases, Permits, real estate leases and other arrangements set forth on Schedule 5.2(e) , so as to preserve all rights of, and benefits to, the Buyer thereunder from and after the Closing. To the extent that the rights of the Seller under any Contract or other Purchased Asset to be assigned to Buyer hereunder may not be assigned without the Consent of another Person which has not been obtained as of the Closing, this Agreement will not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and the Seller, at its expense, will obtain any such required Consent(s) within sixty (60) days of Closing. If any such Consent has not been obtained as of the Closing or if any attempted assignment would be ineffective or would impair the Buyer’s rights under the Contract or Purchased Asset in question so that the Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by Law and the Contract or Purchased Asset, will act after the Closing as the Buyer’s agent for the limited purpose of obtaining for it the benefits thereunder and will cooperate, to the maximum extent permitted by Law and the Contract or Purchased Asset, with Buyer in any other reasonable arrangement satisfactory to all parties designed to provide such benefits to the Buyer, and the Buyer will be responsible for the costs and expenses of obtaining such benefits. Notwithstanding the foregoing, any failure to obtain any required Consent, whether or not disclosed by the Seller to the Buyer in the Schedules or otherwise, will not relieve the Seller of its obligation to obtain all such Consents as set forth herein. | 22Consents
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The proceeds of the Tranche A Term Loans and the Tranche B Term Loans, together with the proceeds of the Revolving Loans made on the Closing Date and the proceeds of the New Senior Notes, will be used by the Borrower on the Closing Date solely to pay the Transaction Costs, to consummate the Existing Indebtedness Refinancing, to pay the cash portion of the Merger Consideration (as defined in the Purchase Agreement) and for general corporate purposes. The proceeds of the Revolving Loans after the Closing Date will be used for general corporate purposes. Letters of Credit will be issued only to support the operations in the ordinary course of business of the Parent and the Restricted Subsidiaries. | 92Use Of Proceeds
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Subject to the other terms of the Plan and this Agreement, within a reasonable time following each Vesting Date, the Company will issue or cause to be delivered to the Participant (or if any other individual(s) then hold the RSUs, to such individual(s)) the number of Shares the Participant is entitled to receive as a result of the vesting of the RSUs. The Shares shall be registered in the name of the Participant (or the name(s) of the individual(s) that then hold the RSUs, either alone or jointly with another person(s) with rights of survivorship, as such individual(s) shall prescribe in writing or other methods allowed to the Company), and shall in all cases be delivered to the Participant within ten (10) business days following the applicable Vesting Date. Notwithstanding the foregoing, the delivery of Shares upon vesting of an RSU may be delayed if the amount to be paid or delivered is reasonably likely to violate applicable federal, state or non-U.S. securities laws; provided, however, that the delivery will occur at the earliest date the Company reasonably anticipates that the distribution will not cause a violation. | 46General
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Any and all notices, elections and communications required or permitted by this Agreement shall be made or given in writing and shall be delivered in person or sent by postage, pre-paid, United States Mail, certified or registered, return receipt requested, or by a recognized overnight courier such as FedEx or UPS, or by facsimile or e-mail, to the other parties at the addresses set forth below, or such other address as may be furnished by notice in accordance with this paragraph. The date of notice given by personal delivery shall be the date of such delivery. The effective date of notice by mail, facsimile, email or overnight courier shall be the date such notice is mailed, faxed, emailed or deposited with such overnight courier. In the event that the last day for giving notice hereunder or for the performance of any obligation hereunder, including closing, falls upon a Saturday, Sunday or a legal holiday, the last day for said notice or performance shall be deemed to be the next day which is neither a Saturday, Sunday nor a legal holiday. | 65Notices
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This Letter may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement. The headings of the various sections of this Letter have been inserted for reference only and shall not be deemed to be a part of this Letter. | 59Miscellaneous
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All covenants, agreements, representations and warranties made by the Borrower in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under any Loan Document is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 9.03, this Section 9.05 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof. | 85Survival
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This Amendment Number Four may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. The parties agree that this Amendment Number Four, any documents to be delivered pursuant to this Amendment Number Four and any notices hereunder may be transmitted between them by email and/or by facsimile. The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties. | 26Counterparts
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The Company shall use the net proceeds from the sale of the Securities hereunder primarily for working capital purposes and to fund the general corporate purposes of the Company and its Subsidiaries, and to fund certain contractual obligations relating to acquisitions and to repay certain outstanding indebtedness (to the extent such indebtedness shall not have earlier converted into common stock). | 92Use Of Proceeds
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This Agreement shall remain in full force and effect unless and until the Support Agreement is terminated in accordance with its terms (except for a termination of the Support Agreement on account of the consummation of the Merger). In the event that the Merger Agreement is terminated in accordance with its terms, (i) this Agreement shall automatically and immediately terminate and be of no further force and effect, all without the need for any further action of the part of (or notice to) any person and (ii) there shall be no liability or obligation hereunder on the part of any Party or any of their respective affiliates, or any of their respective managers, directors, stockholders, members, partners, officers, employees, agents, consultants, accountants, attorneys, investment bankers, financial advisors, representatives, successors or assigns. Without limiting the immediately preceding sentence, if this Agreement is terminated then the Stockholders shall not be required to consummate the Specified Exchange. None of the representations or warranties made by any Party in Section 3 or Section 5 hereof, as applicable, shall survive the termination of this Agreement or the Effective Time. | 89Terms
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No provision of this Agreement shall be waived by any act, omission or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party. | 97Waivers
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Any notice required to be given or delivered to the Corporation under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal corporate offices. Any notice required to be given or delivered to Optionee shall be in writing and addressed to Optionee at the most current address then indicated for Optionee on the Corporation’s employee records or shall be delivered electronically to Optionee through the Corporation’s electronic mail system. All notices shall be deemed effective upon personal delivery or transmission through the Corporation’s electronic mail system or upon deposit in the U.S. mail, postage prepaid and properly addressed to the party to be notified. | 65Notices
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The Borrower will use the proceeds of the Loans to fund, in part, the Acquisition and to pay fees and expenses in connection with the Transactions; provided that neither the Administrative Agent nor any Lender shall have any responsibility as to the use of any such proceeds. | 92Use Of Proceeds
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Except as may be otherwise provided herein, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, applied without reference to principles of conflict of laws. | 4Applicable Laws
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Each of the parties acknowledges and agrees that the subject matter of this Agreement, including the business, assets and properties of each of the Citywide Entities, is unique, that the other party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, and that the remedies at Law would not be adequate to compensate such other parties not in default or in breach. Accordingly, each of the parties agrees that the other party will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions of this Agreement in addition to any other remedy to which they may be entitled, at Law or in equity (without any requirement that Heartland provide any bond or other security). The parties waive any defense that a remedy at Law is adequate and any requirement to post bond or provide similar security in connection with actions instituted for injunctive relief or specific performance of this Agreement. | 81Specific Performance
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None of the Agents or the Lenders shall by any act (except by a written instrument pursuant to Section 10.01), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Arranger, Agent or Lender, 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 any Arranger, Agent or Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Arranger, Agent or Lender 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 other rights or remedies provided by law. | 63No Waivers
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The headings in this Award Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Award Agreement. | 48Headings
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This Agreement shall become effective on the Closing Date and, subject to Section 12.7, shall continue in full force and effect for so long as any Obligations remain outstanding or DPW has any obligation to make Credit Extensions under this Agreement. Notwithstanding the foregoing, DPW shall have the right to terminate its obligation to make Credit Extensions under this Agreement immediately and without notice upon the occurrence and during the continuance of an Event of Default. | 89Terms
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(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the Commitment of such Lender (whether used or unused) during the period from and including the Effective Date to but excluding the date on which such Commitment terminates; provided that , if such Lender continues to have any Exposure after its Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender's Exposure from and including the date on which its Commitment terminates to but excluding the date on which such Lender ceases to have any Exposure. Accrued facility fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof; provided that any facility fees accruing after the date on which the Commitments terminate shall be payable on demand. All facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). | 42Fees
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Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Agent, sell participations to any Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person), a Defaulting Lender or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain the holder of its Loans and owner of its participations or other interest in any Letter of Credit for all purposes hereunder, (iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iv) the Borrowers, the Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation. | 67Participations
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In the event that any payments made hereunder on the Obligations at any particular time are insufficient to satisfy in full the Obligations due and payable at such time, such payments shall be applied (i) first, to that portion of the Obligations consisting of fees and expenses then due and payable, (ii) second, to that portion of the Obligations consisting of accrued, unpaid interest then due and payable, (iii) third, to that portion of the Obligations consisting of principal then due and payable, and (iv) last, to any other Obligations or, to the extent not prohibited by Law, to the Obligations in such other order as the Required Lenders might elect. | 0Adjustments
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Neither Party may issue a press releases or otherwise disclose the existence or terms of this Agreement without the prior written consent of the other Party; provided, however, that once the existence or any terms or conditions of this Agreement has been publicly disclosed in a manner mutually and reasonably agreed-to by the Parties, either Party may republish the facts previously disclosed without the prior consent of the other Party. COH may, in its sole discretion and without the approval of Licensee, publicly disclose the existence of this Agreement and the overall potential value of the Agreement to COH, so long as the detailed and specific terms and conditions of this Agreement are not disclosed. If a third party inquires whether a license is available, COH may disclose the existence of the Agreement and the extent of its grant in Section 3.1 to such third party, but will not disclose the name of the Licensee, except where COH is required to release information under either the California Public Records Act or other applicable law. Notwithstanding the foregoing, COH may disclose an unredacted copy of this Agreement as required under any obligations as applicable to the PCF Grant. | 71Publicity
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No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time. | 60Modifications
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The Company shall be entitled to withhold (or to cause the withholding of) the amount, if any, of all taxes of any applicable jurisdiction required to be withheld by an employer with respect to any amount paid to Executive hereunder. The Company or DuPont, in its sole and absolute discretion, shall make all determinations as to whether it is obligated to withhold any taxes hereunder and the amount thereof. | 99Withholdings
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(a) Trustor shall pay, or cause to be paid prior to delinquency, all real property taxes and assessments, general and special, and all other taxes and assessments of any kind or nature whatsoever accruing after May 30, 2017 including, without limitation, non-governmental levies or assessments such as maintenance charges, levies or charges resulting from covenants, conditions and restrictions affecting the Property which are assessed or imposed upon the Property, or upon Trustor as owner or operator of the Property, and which create or may create a lien upon the Property, or any part thereof, or upon any personal property, equipment or other facility used in the operation or maintenance thereof (all of the above collectively referred to as “Impositions”); provided, however, that if, by law, any such Imposition is due and payable, or may at the option of the taxpayer be paid, in installments, Trustor may pay the same or cause it to be paid, together with any accrued interest on the unpaid balance of such Imposition, in installments as the same become due and before any fine, penalty, interest or cost may be added thereto for the nonpayment of any such installment and interest. | 87Taxes
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The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other parties may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement. | 45Further Assurances
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Except as would not reasonably be expected to have a Material Adverse Effect and except as set forth in Schedule 3.22 , (a) each Borrower and each of its Subsidiaries owns, or possesses the right to use, all of the patents, trademarks, service marks or trade names, copyrights or mask works, domain names, data, databases, trade secrets, applications and registrations for any of the foregoing (collectively, “ Intellectual Property Rights ”) that are reasonably necessary for the operation of their respective businesses, (b) to the best knowledge of the Borrowers, the Borrowers and the Subsidiaries are not interfering with, infringing upon, misappropriating or otherwise violating Intellectual Property Rights of any person, and (c) no claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrowers, threatened. | 53Intellectual Property
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Teich agrees to cooperate fully with the Company in connection with any matter or event relating to Teich’s employment or events that occurred during Teich’s employment or other engagement to provide advisory services (including but not limited to the Advisory Term), including but not limited to (a) cooperating 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; (b) being available, upon reasonable notice to meet with the Company regarding matters in which Teich has been involved, including any contract matters or audits; (c) preparing for, attending and participating in any legal proceeding including, without limitation, depositions, consultation, discovery or trial; (d) providing affidavits and/or acting as a witness in connection with respect to any litigation or other legal proceeding affecting the Company; (e) assisting with any audit, inspection, proceeding or other inquiry. The Company will reimburse Teich for all reasonable documented, out-of-pocket expenses he incurs in providing such cooperation to the Company. Teich agrees that should Teich be contacted (directly or indirectly) by any person or entity (for example, by any party representing an individual or entity) adverse to the Company, Teich shall promptly notify the Chairman of the Board prior to the Separation Date. In the event that Teich receives an order, subpoena, request, or demand for disclosure of the Company’s trade secrets and/or confidential and proprietary documents and information from any court or governmental agency, or from a party to any litigation or administrative proceeding, Teich shall notify the Company of same as soon as reasonably possible and prior to disclosure, in order to provide the Company with the opportunity to assert its respective interests in addressing or opposing such order, subpoena, request, or demand. Notwithstanding anything in this agreement to the contrary, Teich and the Company agree that the obligations imposed upon him under this section shall survive the termination or expiration of the Advisory Term. | 24Cooperation
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Neither (a) any assets of Sellers, including the Assets, nor (b) any funds to be used by Sellers with respect to the transactions contemplated pursuant to this Agreement, are, or at the Closing will be, pursuant to ERISA or the Code, considered for any purpose of ERISA or Section 4975 of the Code to be assets of a Plan. Sellers are not executing this Agreement nor will they be performing their obligations or exercising their rights or remedies under this Agreement on behalf of or for the benefit of any Plan. Neither the execution nor delivery of this Agreement by Sellers, nor the performance by Sellers of its obligations or the exercise of its rights or remedies under this Agreement, nor any transaction contemplated under this Agreement, is or will be a “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code. | 39Erisa
|
Capitalized terms used but not defined in this Agreement are defined in (a) Appendix A to the Series 2017-2 Indenture Supplement, dated as of October 1, 2017 (the “ Indenture Supplement ”), between the Grantor, as Issuer, and The Bank of New York Mellon, as Indenture Trustee, or (b) Appendix A to (i) the Fifth Amended and Restated Sale and Servicing Agreement, dated as of August 1, 2001, as amended and restated as of December 1, 2010, among Ford Credit Floorplan Corporation, as Depositor, the Grantor, as Issuer, and Ford Motor Credit Company LLC, as Servicer, and (ii) the Fifth Amended and Restated Sale and Servicing Agreement, dated as of August 1, 2001, as amended and restated as of December 1, 2010, among Ford Credit Floorplan LLC, as Depositor, the Issuer and the Servicer. Each Appendix A also contains usage rules that apply to this Agreement. Each Appendix A is incorporated by reference into this Agreement. References to the “UCC” mean the Uniform Commercial Code as in effect in the State of New York. | 29Definitions
|
As Chief Operating Officer of the Company you will be responsible for the general management and supervision of the Company’s radio market operations and discharge such other duties as may from time to time be assigned by the Board of Directors or the CEO. In addition, you will oversee various corporate staff functions as designated by the Company’s CEO and will be responsible for facilitating the effective coordination and integration of the various activities of relevant functions of the corporate staff and local markets to help facilitate meeting and exceeding the Company’s business goals. You agree that you will devote your full time and best efforts to the Company’s business and will not accept any outside employment without the prior written consent of the CEO of the Company. | 32Duties
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The Agreement may be executed in any number of counterparts, each of which need not contain the signature of more than one party but all such counterparts taken together shall constitute one and the same agreement. | 26Counterparts
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