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The obligations of the parties under Section 10.03 shall survive the repayment of the Loans and the termination of the Letters of Credit, Secured Hedge Agreements, Secured Cash Management Agreements, Credit Agreement, and aggregate Committed Amounts. To the extent that any payments on the Obligations or proceeds of any Collateral are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Administrative Agent’s and the other Secured Parties’ Liens, security interests, rights, powers and remedies under this Agreement and each Collateral Document shall continue in full force and effect. In such event, each Collateral Document shall be automatically reinstated and each Grantor shall take such action as may be reasonably requested by the Administrative Agent and the other Secured Parties to effect such reinstatement. | 85Survival
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This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile, electronic or .pdf signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile, electronic or .pdf signature. | 26Counterparts
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The Administrative Agent shall have received for its own account, and for the account of each other Lender, as the case may be, all costs, fees and expenses (including the costs and expenses of legal counsel to the Administrative Agent) due and payable pursuant to Section 3.3 and, if then invoiced at least one (1) Business Day prior to the Effective Date, Section 11.3 . | 41Expenses
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On the date hereof, Borrower shall pay interest on the outstanding principal balance of each Component from and including the Closing Date through and including May 7, 2017 (the “ Initial Interest Period ”). On June 1, 2017 and on each Monthly Payment Date thereafter, up to and including the Maturity Date, Borrower shall make a payment to Lender of interest equal to the Monthly Debt Service Payment Amount. Unless otherwise elected by Lender, provided no Event of Default then exists, the Monthly Debt Service Payment Amount shall be applied (A) first, to the payment of interest then due and payable on Component A, (B) second, to the payment of interest then due and payable on Component B, (C) Third, to the payment of interest then due and payable on Component C, (D) fourth, to the payment of interest then due and payable on Component D, (E) fifth, to the payment of interest then due and payable on Component E and (F) sixth, to the payment of interest then due and payable on Component F. Borrower shall also pay to Lender all amounts required in respect of Reserve Funds as set forth in Article 6 hereof. | 68Payments
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Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock. Following the application of the proceeds of the Loans, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 6.02 , Section 6.04 or any other provision restricting the disposition or pledge of Margin Stock, or subject to any restriction on the disposition or pledge of Margin Stock contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of clauses (f) or (g) of Article VII , will be Margin Stock. | 92Use Of Proceeds
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No wai v er of any term or provision of this Employment Agreement will be valid unl e ss s uch waiver i s in writing signed b y the part y against whom enforcement of the waiver is sought . The waiver of any term or provision of this E mployment Agreement shall not apply to any subsequent breach of this Employment Agreement. | 97Waivers
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The provisions of this Section 4.4 shall be deemed reaffirmed by Buyer and Sections 4.4(c) and 4.4(d) shall be deemed reaffirmed by Seller delivery and acceptance of the Ground Lease Assignment Agreement and shall survive the Closing (and not be merged into the Ground Lease Assignment Agreement) or earlier termination of this Agreement. | 85Survival
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All of the Deferred Stock Units shall initially be unvested. During the 12-month period following ____________ (the “Vesting Commencement Date”), 25% of the Deferred Stock Units shall become vested as of the end of each 3-month period following the Vesting Commencement Date, provided the Director has continued on the Board until the end of such 3-month period. All of the Deferred Stock Units credited to the Account shall become fully vested upon the occurrence of a Change in Control (as defined in Appendix A) or the Director’s death, provided the Director is then serving on the Board. | 95Vesting
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No press release or other form of publicity regarding this Agreement shall be permitted by either Party to be published unless both Parties have indicated their consent to the form of the release in writing. | 71Publicity
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THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE AND JURY TRIAL WAIVER SET FORTH IN SECTION 14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS . | 94Venues
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The Term of the Employment Agreement shall end on June 30, 2018 (the “ Retirement Date ”), and shall not be renewed. Between the Effective Date and the Retirement Date, the Company shall employ Employee, and Employee shall serve the Company, on the terms and conditions set forth in the Employment Agreement, as modified by this Agreement, unless sooner terminated pursuant to the provisions of the Employment Agreement (the “ Transition Period ”). Subject to the terms and conditions of this Agreement, Employee’s retirement on the Retirement Date shall be deemed an Approved Retirement for purposes of all equity awards under the CPI Card Group Inc. Omnibus Incentive Plan. | 89Terms
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The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means or request that you consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an online or electronic system established and maintained by the Company or any third party designated by the Company. | 67Participations
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Except as otherwise expressly provided in this Agreement, as applicable, any term of this Agreement may be waived only by a written instrument executed by a duly authorized representative of the Party waiving compliance. The delay or failure of either Party at any time to require performance of any provision of this Agreement shall in no manner affect such Party’s rights at a later time to enforce the same. No waiver by either Party of any condition or term in any one or more instances shall be construed as a further or continuing waiver of such condition or term or of another condition or term. | 97Waivers
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Unenforceability of any provision or provisions of this Agreement will not render unenforceable, or impair, the remainder of this Agreement. If any provision or provisions of this Agreement will be found to be invalid, illegal or unenforceable, either in whole or in part, this Agreement will be deemed amended to delete or modify as necessary the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable. | 79Severability
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In connection with the Fourth Closing, the Borrowers shall pay to YA Global II SPV LLC (as designee of the Investor) a commitment fee in the amount equal to $150,000, of which $100,000 shall be due and payable in cash on the date hereof, and the remaining $50,000 shall be due and payable in cash on the date 120 days from the date hereof. | 42Fees
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This Agreement shall be effective as of the date hereof (the “Start Date”); however, that date in which the Company closes on at least $5 million in equity financing shall be defined as the official Effective Date of the Agreement (the “Effective Date”). The Term of this Agreement shall commence on the Start Date and continue for a period of two years from the Effective Date. This Agreement will automatically renew for annual periods at the end of the initial Term unless either the Board or the Employee provides notice of termination to the other in writing no less than 60 days before the end of such term. | 89Terms
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Except for the security interest granted to the Administrative Agent for the benefit of the Secured Parties pursuant to this Agreement and Liens permitted under Section 7.01 of the Credit Agreement (“ Permitted Liens ”), such Grantor owns or has rights and, as to Collateral acquired by it from time to time after the date hereof, will own or have rights in each item of Collateral in which it has granted the security interest to the Administrative Agent hereunder, free and clear of any and all Liens or claims of others ( except for minor defects in title that do not interfere with Grantor’s ability to (i) conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their intended purposes or (ii) grant the security interest granted hereunder) . | 90Titles
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The representations and warranties contained herein shall survive the Closing Date for a period of one (1) year. | 85Survival
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Except in the case of the Mandatory Forum Selection Clause in Section 14.6 above, which clause shall be governed and interpreted in accordance with Florida law, this Agreement, the Loan Documents, the Fee Note and the Revolving Note shall be delivered and accepted in, and shall be deemed to be contracts made under and governed by, the internal laws of the State of Nevada, and for all purposes shall be construed in accordance with the laws of the State of Nevada, without giving effect to the choice of law provisions of such State. The governing law provisions of this Section 14.12 are a material inducement for Lender to enter into this Agreement, and the Borrowers hereby agree, acknowledges and understands that the Lender would not have entered into this Agreement, nor made or provided the Loans, without the full agreement and consent of the Credit Parties, with full knowledge and understanding, that except in the case of the Mandatory Forum Selection Clause in Section 14.6 above, which clause shall be governed and interpreted in accordance with Florida law, this Agreement, and each of the Loan Documents, shall be governed by the internal laws of the State of Nevada, and for all purposes shall be construed in accordance with the laws of the State of Nevada, without giving effect to the choice of law provisions. In this regard, each of the Credit Parties hereby acknowledges that it has reviewed this Agreement and all Loan Documents, and specifically, this Section 14.12 , with competent counsel selected by the Credit Parties, and in that regard, each of the Credit Parties fully understands the choice of law provisions set forth in this Section. In addition, each of the Credit Parties agree, and acknowledge that it has had an opportunity to negotiate the terms and provisions of this Agreement and the other Loan Documents with and through its counsel, and that the Credit Parties have sufficient leverage and economic bargaining power, and have used such leverage and economic bargaining power, to fairly and fully negotiate this Agreement and the other Loan Documents in a manner that is acceptable to the Credit Parties. Moreover, because of the material nature of this choice of law provision in inducing Lender to enter into this Agreement and to make the Loans to the Credit Parties, each of the Credit Parties hereby fully and absolutely waives any and all rights to make any claims, counterclaims, defenses, to raise or make any arguments (including any claims, counterclaims, defenses, or arguments based on grounds of public policy, unconscionability, or implied covenants of fair dealing and good faith), or to otherwise undertake any litigation strategy or maneuver of any nature or kind that would result in, or which otherwise seeks to, invalidate this choice of law provision, or that would otherwise result in or require the application of the laws of any other State other than the State of Nevada in the interpretation or governance of this Agreement or any other Loan Documents (except for the Mandatory Forum Selection clause in Section 14.6 hereof). Each of the Credit Parties has carefully considered this Section 14.12 and has carefully reviewed its application and effect with competent counsel, and in that regard, fully understands and agrees that Lender would not have entered into this Agreement, nor made the Loans, without the express agreement and acknowledgement of each of the Credit Parties to this choice of law provision, and the express waivers set forth herein. | 47Governing Laws
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This Note, and disputes or controversies arising hereunder, and the rights and obligations of the parties under this Note, shall be governed by, and construed and interpreted in accordance with, the law of the State of Colorado without regard to conflicts of law principles. | 47Governing Laws
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All provisions of the Plan shall be construed in accordance with the laws of Texas except to the extent preempted by federal law. | 47Governing Laws
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This Agreement will become effective as of the Effective Date, and unless earlier terminated under this Section 10 , will continue in effect for five (5) years, and thereafter automatically be extended for successive renewal terms of two (2) years each, unless TESARO Party provides a notice of non-renewal at least six (6) months prior to the expiration of the initial term or the then applicable renewal term, and in the case of Supplier, provides a notice of non-renewal at least one year prior to the expiration of the initial term or the then-applicable renewal term, subject to earlier termination in accordance with the terms of this Agreement or the execution by both Parties of a document terminating this Agreement (such perio d between commencement and termination, the “ Term ”). | 89Terms
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Notwithstanding anything herein to the contrary, if the Executive is a Specified Employee on the date of his Separation From Service, any payments or benefits hereunder that are deferred compensation subject to Section 409A, are payable upon his Separation From Service, and are not otherwise exempt from Section 409A, shall not be paid during the Waiting Period, and on the first business day following the expiration of the Waiting Period all payment and benefits that were payable during the Waiting Period will be paid to the Executive in a cash lump sum payment, without interest, and thereafter payments and benefits will be paid as provided herein. | 46General
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The Servicer, its Subsidiaries and their respective Related Parties shall (i) comply with all applicable Anti-Money Laundering Laws and Anti-Corruption Laws, (ii) conduct the requisite due diligence in connection with the transactions contemplated herein for purposes of complying with applicable Anti-Money Laundering Laws, (iii) ensure it does not use any of the proceeds of the Loans in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws and (iv) ensure it does not fund any repayment of the Loans in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws. | 3Anti-Corruption Laws
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This Agreement shall be binding upon the parties hereto and each of their heirs, beneficiaries, legal representatives, successors and assigns, as applicable. | 13Binding Effects
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This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the State or Commonwealth in which the Real Property is located (i.e., California). | 47Governing Laws
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With such exceptions that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect, there is no litigation or governmental proceeding pending or, to the Company’s Knowledge, threatened, against the Company or any of its Subsidiaries or affecting any of the properties or assets of the Company or any of its Subsidiaries. Neither the Company nor any Subsidiary is in default with respect to any order, writ, injunction, decree, ruling or decision of any court, commission, board or other government agency that is expressly applicable to the Company or any Subsidiary or any of their assets or property. | 58Litigations
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The Retirement Income Contributions or other employer non-matching contributions credited to a Participant under this Appendix B shall be subject to the same vesting requirements as are imposed on Retirement Income Contributions or other employer non-matching contributions under the Participant’s Retirement Plan. If the Participant is terminated for Cause (or if the Administrator determines that a Participant who was terminated other than for Cause engaged in conduct prior to his or her termination which would have constituted Cause), then the Administrator may determine in its sole discretion that the portion of the Participant’s Account accumulated on or after January 1, 2018 shall be forfeited and not payable hereunder. | 95Vesting
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The obligations of confidentiality in this Article IV shall survive the termination of this Agreement and shall continue with respect to donor information without limit of time and in respect of other confidential information for a period of [***] years. | 85Survival
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person or a holding company, investment vehicle or trust for, or owned or operated for the primary benefit of, a natural Person or the Borrower or any of the Borrower’s 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 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) the Borrower, the Administrative Agent, the Issuing Lender and the 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 11.3(c) with respect to any payments made by such Lender to its Participant(s). | 67Participations
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THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO AND ACCEPT THIS AGREEMENT AND SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT. | 96Waiver Of Jury Trials
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Notwithstanding anything in this Agreement to the contrary, unless the Company provides otherwise, upon termination of employment for any reason, Executive shall be deemed to have resigned as a member of the Board of Directors of the Company, if applicable, and as an officer, director, manager and employee of the Company and its Related Entities and shall execute any documents and take any actions to effect the foregoing as requested by the Company. In order to be eligible to receive any payments or benefits hereunder as a result of the termination of the Executive’s employment, in addition to fulfilling all other conditions precedent to such receipt, the Executive or the Executive’s legal representative must within 21 days (or such other period as required under applicable law) after presentation of a release in form and substance reasonably satisfactory to the Company and its legal counsel, execute said release, and within 7 days (or such other period as required under applicable law) after such execution not revoke said release, on behalf of the Executive and the Executive’s estate, heirs and representatives, releasing the Company, its Related Entities and each of the Company’s and such Related Entities’ respective officers, directors, employees, members, managers, agents, independent contractors, representatives, shareholders, successors and assigns (all of which persons and entities shall be third party beneficiaries of such release with full power to enforce the provisions thereof) from any and all claims related to the Executive’s employment with the Company; termination of the Executive’s employment; all matters alleged or which could have been alleged in a charge or complaint against the Company; any and all injuries, losses or damages to Employee, including any claims for attorney’s fees; any and all claims relating to the conduct of any employee, servant, officer, director or agent of the Company; and any and all matters, transactions or things occurring prior to the date of said release, including any and all possible claims, known or unknown, which could have been asserted against the Company or the Company’s employees, agents, servants, officers or directors. Notwithstanding the foregoing, the form of release shall except out therefrom, and acknowledge the Executive’s continuing rights with respect to, the following: (i) all vested rights that the Executive may have under all welfare, retirement and other plans and programs of the Company in which the Executive was participating at the time of his employment termination, including all equity plans and programs of the Company with respect to which equity awards were made to the Executive, (ii) all continuing rights that the Executive may have under this Agreement, and (iii) all rights that the Executive may have following the termination of his employment under the Company’s Certificate of Incorporation and Bylaws, any applicable Company insurance and any indemnity agreements to which the Executive is a party which provide for indemnification, insurance or other, similar coverage for the Executive with respect to his actions or inactions as an officer, employee and/or member of the Board. For clarification, unless and until the Executive executes and does not, within any applicable revocation period, revoke the release, the Company shall have no obligation to make any Termination Payment to the Executive, and, even if the Executive does not execute the release, the Executive shall be bound by the post-termination provisions of this Agreement, including without limitation Section 18. | 74Releases
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If any provision of the Plan becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person, or would disqualify the Plan or any purchase under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, such provision shall be stricken as to such jurisdiction or person, and the remainder of the Plan shall remain in full force and effect. | 79Severability
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All notices, demands, requests, consents, approvals or other communications (collectively, “ Notices ”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, or certified mail, return receipt acknowledged, postage prepaid, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours, then such notice shall be deemed given on the next business day; or on the fifth business day following such mailing if made if sent by certified mail. Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day delivery. | 65Notices
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The execution and delivery by the Borrowers of this Amendment and the performance by the Borrowers of this Amendment and the Term Loan Agreement, as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Government Approvals or other consents, licenses or approvals that have not been obtained, or violate any Applicable Laws relating to any Borrower; (ii) conflict with, result in a breach of or constitute a default under any Borrower’s articles of incorporation or by-laws or any indenture, agreement or other instrument to which the Borrowers are a party or by which the Borrowers or any of their respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrowers. The Borrowers and each of the Borrowers’ Subsidiaries are in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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The lease term shall commence on January 9, 2017 and continue through January 9, 2032, unless sooner terminated. | 89Terms
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The headings of the sections of this agreement are inserted for convenience only and shall not be deemed to be part hereof. | 48Headings
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As of the Effective Date hereof, Tenant hereby represents and warrants to Landlord the following, all of which shall survive the expiration or termination of the Lease: (i) Tenant is the sole legal and equitable owner of the leasehold estate of the "Tenant" under the Lease and is the only occupant of the Premises; (ii) Tenant has not previously assigned or transferred any interest in the Lease (other than as security for any indebtedness) or sublet the Premises or any portion thereof; and (iii) Tenant has full power and authority to execute and deliver this Second Amendment. | 76Representations
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The parties may sign any number of copies of this Joinder Supplement, and different parties may sign on different signature pages. Each signed copy shall be an original, but all of them together shall represent the same supplemental agreement. | 26Counterparts
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All disputes arising out of or relating to this Agreement and all actions to enforce this Agreement shall be adjudicated in the state or federal courts sitting in Denver, Colorado. The parties hereto irrevocably submit to the jurisdiction of such courts in any suit, action or proceeding relating to any such dispute. So far as is permitted under applicable law, this consent to personal jurisdiction shall be self-operative and no further instrument or action, other than service of process or as permitted by law, shall be necessary in order to confer jurisdiction upon the undersigned in any such court. | 94Venues
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The Company and each of its subsidiaries, including the Significant Subsidiary, will use commercially reasonable efforts to maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Prospectus, and the Company and each of its subsidiaries, including the Significant Subsidiary, shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations would not reasonably be expected to result in a Material Adverse Change. | 19Compliance With Laws
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Directly or, to its knowledge, indirectly use the proceeds of any extension of credit hereunder for any purpose which would violate the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar anti-corruption legislation in other jurisdictions applicable to it or the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions applicable to it or the rules and regulations thereunder. | 3Anti-Corruption Laws
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Executive will be eligible to participate in regular health insurance, bonus and other employee benefit plans established by the Company for its employees from time to time. | 12Benefits
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No material report, material certificate or other material information furnished in writing (other than projections, other forward looking information and information of a general economic or general industry nature) by or on behalf of any Credit Party or any Subsidiary thereof to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) concerning the Borrower, its Subsidiaries and the transaction contemplated hereby, taken as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading as of the date on which such report, certificate or information was furnished; provided that, with respect to projected financial information, pro forma financial information, estimated financial information and other projected or estimated information, such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections may vary from such projections and such variation may be material). | 31Disclosures
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During the Employment Period, Employee shall be eligible to participate in the same benefit plans and programs in which other similarly situated Company employees are eligible to participate, subject to the terms and conditions of the applicable plans and programs in effect from time to time. The Company shall not, however, by reason of this Section 6 , be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any such plan or policy, so long as such changes are similarly applicable to similarly situated Company employees generally. | 12Benefits
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This Agreement shall be governed exclusively by, and construed and enforced exclusively in accordance with, the internal Laws of the State of New York, without giving effect to the principles of conflicts of law thereof to the extent such principles would require or permit the application of the laws of another jurisdiction. | 47Governing Laws
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(collectively, this “ Agreement ”), among M/I HOMES, INC., an Ohio corporation (the “ Borrower ”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “ Lenders ”) , and PNC BANK, NATIONAL ASSOCIATION, as Swingline Lender, an Issuing Lender and Administrative Agent (each as hereinafter defined) , JPMORGAN CHASE BANK, N.A., WELLS FARGO BANK, NATIONAL ASSOCIATION, and CITIBANK, N.A., as Co-Syndication Agents (each, in such capacity, a “Co-Syndication Agent”), and COMERICA BANK, THE HUNTINGTON NATIONAL BANK, and U.S. BANK NATIONAL ASSOCIATION (each, in such capacity, a “Co-Documentation Agent”). . | 1Agreements
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No agent, broker, investment banker or other firm or Person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee in connection with any of the Transactions as a result of any action taken by Licensor or any Additional Party. | 42Fees
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The provisions of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. Further, if a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable as written, such court may interpret, construe, rewrite or revise such provision, to the fullest extent allowed by law, so as to make it valid and enforceable consistent with the intent of the parties hereto. | 79Severability
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Each Lender shall, pro rata, in proportion to the amount of the Note held by him, indemnify Agent against any cost, expense, claim, demand, action, loss, or liability, including reasonable attorney’s fees incurred in contesting the same, that Agent may suffer or incur in connection with the Loan in his capacity as Agent, or any action taken or omitted by Agent in good faith under this Agreement, except to the extent the same arises from Agent’s gross negligence or willful misconduct, or from actions taken by Agent that are outside the scope of his authority under this Agreement. | 49Indemnifications
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Employer shall have the right to withhold from the compensation payable to Marcum hereunder any amounts required by law to be withheld. | 99Withholdings
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Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, enter into any transaction of any kind with any Affiliate of a member of the Consolidated Group, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such member of the Consolidated Group as would be obtainable by such member of the Consolidated Group at the time in a comparable arm’s length transaction with a Person other than an Affiliate. | 91Transactions With Affiliates
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Any notice under this Agreement shall be in writing, and any written notice or other document shall be deemed to have been duly given (i) on the date of personal service on the parties, (ii) on the third business day after mailing, if the document is mailed by registered or certified mail, (iii) one day after being sent by professional or overnight courier or messenger service guaranteeing one-day delivery, with receipt confirmed by the courier, or (iv) on the date of transmission if sent by telegram, telex, telecopy or other means of electronic transmission resulting in written copies, with receipt confirmed. Any such notice shall be delivered or addressed to the parties at the addresses set forth below or at the most recent address specified by the addressee through written notice under this provision. Failure to give notice in accordance with any of the foregoing methods shall not defeat the effectiveness of notice actually received by the addressee. | 65Notices
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The headings and subheadings of this Agreement have been inserted for convenience only, and shall not affect the construction of the provisions hereof. All references to sections of this Agreement shall be deemed to refer as well to all subsections which form a part of such section. | 23Construction
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All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Grantor shall be given to it in care of Borrower as provided in Section 9.01 of the Credit Agreement. | 65Notices
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This Agreement may be executed by facsimile or electronic signature and in counterparts. | 26Counterparts
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If the Commitment of any Lender is increased in accordance with this Section , Administrative Agent and Borrower shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase. Administrative Agent shall promptly notify Borrower and Lenders of the final allocation of such increase and the Increase Effective Date. | 33Effective Dates
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Any breach of Section 2 or 3 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. | 59Miscellaneous
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Seller agrees to cooperate with Broker in carrying out the purpose of this Agreement, including but not limited to providing Broker with all information needed regarding Seller and the Property for MLS or similar input or setup and referring to Broker all inquiries regarding the Property or its potential transfer, whether by purchase or any other means of transfer. | 24Cooperation
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The terms, covenants and conditions hereof shall be binding upon and inure to the benefit of Mortgagee, Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns. | 13Binding Effects
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(a) Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes; provided that if the Borrower shall be required to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. | 87Taxes
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Except for the security interest granted to the Administrative Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and the other Liens permitted to exist on the Collateral by the Credit Agreement, such Grantor owns or has a valid leasehold interest in each item of the Collateral free and clear of any and all Liens or claims of others. No financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, pursuant to this Agreement or as are permitted by the Credit Agreement. For the avoidance of doubt, it is understood and agreed that any Grantor may, as part of its business, grant licenses to third parties to use Intellectual Property owned or developed by a Grantor. For purposes of this Agreement and the other Loan Documents, such licensing activity shall not constitute a “Lien” on such Intellectual Property. Each of the Administrative Agent and each other Secured Party understands that any such licenses may be exclusive to the applicable licensees, and such exclusivity provisions may limit the ability of the Administrative Agent to utilize, sell, lease or transfer the related Intellectual Property or otherwise realize value from such Intellectual Property pursuant hereto. | 90Titles
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The Company shall indemnify the Executive to the fullest extent provided in its Articles or By-Laws. The Executive agrees to promptly notify the Company of any actual or threatened claim arising out of or as a result of his employment with the Company. | 49Indemnifications
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This Agreement is not intended to, and does not, create or impose any fiduciary duty on any of the Members or Managers or on their respective Affiliates. Notwithstanding any other provision of this Agreement or any duty otherwise existing at law or in equity, the Members and Managers of the Company shall, to the maximum extent permitted by law, including Section 18-1101(c) of the Act, owe only such duties and obligations as are expressly set forth in this Agreement, and no other duties (including fiduciary duties), to the Company, the Members, the Managers or any other Person otherwise bound by this Agreement. | 32Duties
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Any notices provided for in your Award or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. Any such notices from the Company to you may also be delivered to you through the Company’s electronic mail system (during your Continuous Service) or at the last email address you provided to the Company (after termination of your Continuous Service). | 65Notices
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This Section 8 and any pertinent definitions of terms contained elsewhere in this Agreement shall survive any termination or expiration of this Agreement or employment of Executive. | 85Survival
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The finding by an arbitrator or a court of competent jurisdiction of the unenforceability, invalidity o r illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid or illegal. Such arbitrator or court shall have the authority to modify or replace the invalid or unenforceable term or provision with a valid and enforceable term or provision which most accurately represents the parties’ intention with respect to the invalid or unenforceable term or provision. If moreover, any one or more of the provisions contained in this Agreement will for any r eason be held to be excessively broad as to duration, geographic scope, activity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it will then appear. | 79Severability
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In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company or other similar corporate transaction or event affects the Shares such that an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Shares (or other securities or other property) that thereafter may be made the subject of Awards, (ii) the number and type of Shares (or other securities or other property) subject to outstanding Awards and (iii) the purchase price or exercise price with respect to any Award. | 0Adjustments
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This Note shall be governed by and construed in accordance with the laws of the State of New York without the application of any choice of laws provisions thereof. | 47Governing Laws
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For purposes of this Section 2.09 , the term “applicable law” includes FATCA. | 28Defined Terms
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Capitalized terms used herein (including in the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction specified in Section 1.03 of the Credit Agreement also apply to this Amendment mutatis mutandis . | 28Defined Terms
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Schedule 3.13 contains a list of all material policies of fire, liability, workers’ compensation, property, casualty and other forms of insurance owned or held by the Company as of the date of this Agreement (the “ Policies ”). All of the Policies are, as of the date of this Agreement, in full force and effect, all premiums with respect thereto covering all periods up to and including the Closing Date will have been paid. Neither the Company or, to the Knowledge of the Company, the Company Subsidiary, are not in breach or default, the Company has not taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, of any of the Policies. As of the date hereof, no written notice of cancellation or termination has been received by the Company with respect to any such Policy. The Company and its assets and properties are insured in amounts no less than as required by applicable Law and any Contract to which the Company, as applicable, is a party. No pending claims made by or on behalf of the Company under the Policies have been denied or are being defended against third parties under a reservation of rights by an insurer thereof. The Company has not been refused any insurance with respect to its assets or operations, nor has the Company’s coverage been limited, by any insurance carrier to which any of them has formally applied for any such insurance or with which it has carried insurance. For any insurance policy with a “claims-made” reporting trigger, the Company has reported all claims and all circumstances which may give rise to any claim (as “claim” is defined in such insurance policy) to any respective insurance carrier. | 51Insurances
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Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of Employee , mailed notices shall be addressed to Employee at the home address which he most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary. | 46General
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EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY THE SELLER PARTIES PURSUANT TO THE AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER. | 96Waiver Of Jury Trials
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The term of this Agreement shall commence on the Effective Date and, shall continue unless terminated in accordance with the provisions of Section 7.2. | 89Terms
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Any provision of this Fourth Amendment or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction. | 79Severability
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The article and paragraph headings of this Agreement are for convenience only and do not limit or enlarge the scope or meaning of the language hereof. | 48Headings
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If any provision contained in this Agreement shall be held to be invalid or unenforceable in any respect, then, to the maximum extent permitted by Law, such invalidity or unenforceability shall not affect any other provision of this Agreement. Should any provision of this Agreement be deemed to be too broad in scope to permit enforcement to its full extent, then it shall be enforced to the maximum extent permitted by Law, and the Parties agree that such scope may be judicially modified to the extent necessary to make it enforceable. | 79Severability
|
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision, but this Agreement will be reformed, construed, and enforced in as if such invalid, illegal, or unenforceable provision had never been contained herein. | 79Severability
|
Subject to the provisions of Section 11.11(a) , each of the Administrative Agent, the U.S. Collateral Agents, the U.S. Loan Parties, the Lenders, the L/C Issuers and each of their Related Persons is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any U.S. Loan Document and the transactions contemplated therein. Each U.S. Loan Party and each U.S. Secured Party hereby acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions. | 10Authorizations
|
Notwithstanding the place where this Agreement may be executed by any of the parties hereto, the parties expressly agree that all of the terms and provisions hereof shall be construed in accordance with and governed by the laws of the State of Missouri, or, to the extent applicable the laws of the United States of America, in each case without giving effect to the principles of choice or conflicts of laws thereof. Each of the parties hereto consents and agrees to the exclusive personal jurisdiction of any state or federal court sitting in the State of Missouri, and waives any objection based on venue or forum non conveniens with respect to any action instituted therein, and agrees that any dispute concerning the conduct of any party in connection with this Agreement shall be heard only in the courts described above. | 47Governing Laws
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To the extent that any court action is permitted consistent with or to enforce Section 9 of this Agreement, the parties hereby consent to the jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts. Accordingly, with respect to any such court action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. | 21Consent To Jurisdiction
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Receipt by the Agent and the Bookrunner of any fees required to be paid on or before the Second Amendment Effective Date. | 42Fees
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For purposes of this agreement, any statement as to any person acting on behalf of the Company or its Affiliates shall be deemed to not include the Initial Purchasers or any person acting on their behalf. | 55Interpretations
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No provision of this Agreement is to be interpreted for or against either party because that party or that party’s legal representative or counsel drafted such provision. | 55Interpretations
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This Agreement may be amended by the Parties at any time; provided , however , that after the Sailfish Stockholder Approval, no amendment shall be made which by Law would require the approval of such stockholders, without first obtaining such approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties. | 2Amendments
|
Your employment under this Agreement shall terminate immediately upon your death, and the Company shall have no further obligations under this Agreement, except to pay to your estate (or your beneficiary, as may be appropriate) (a) any Base Salary earned through your date of death, to the extent theretofore unpaid, (b) a pro-rated discretionary Incentive Bonus Payment for the year in which your death occurs, equal to the product of (i) the actual Incentive Bonus Payment for the year of termination multiplied by (ii) a fraction, the numerator of which is the number of completed days in the year of termination during which you were employed by the Company and the denominator of which is 365, and provided that such amount will be paid in the normal course and shall only be paid if you would have become entitled to such amount if you had not terminated yours employment, and (c) such retirement and other benefits earned and vested (if applicable) by you as of the date of your death under any U.S. law governed employee benefit plan of the Company in which you participate, including without limitation all vested benefits due under the SERP and other U.S. retirement plans, all of the foregoing to be paid in the normal course for such payments and in accordance with the terms of such plans. | 27Death
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The Employment Term and Executive’s employment hereunder may be terminated by the Company or by Executive at any time and for any reason. Upon any termination of Executive’s employment during the Employment Term or any annual non-renewal, the Employment Term shall automatically terminate. Upon termination of Executive’s employment for any reason, Executive agrees to resign as of the date of such termination and, to the extent applicable, from any boards (and committees thereof) of the PBF Companies or any of their affiliates. If the Executive is terminated by the Company for Cause, such termination shall be effective immediately. Executive shall give 30 days’ written notice to the Company in accordance with Section 12(g) hereof in the event Executive intends to terminate his employment without Good Reason. Notwithstanding any other provision of this Agreement (other than Section 12(h)), the provisions of this Section 8 shall exclusively govern Executive’s rights upon termination of employment with the Company and its affiliates. | 88Terminations
|
This Agreement may be executed in one or more duplicate counterparts and when signed by all of the parties listed below shall constitute a single binding agreement. Delivery of an executed counterpart of a signature page of this Agreement by fax or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. | 26Counterparts
|
This Amendment may be executed in counterparts which together shall constitute but one and the same original. Delivery of an executed counterpart of this Amendment by email with scanned attachment shall be equally as effective as delivery of an original executed counterpart. Any party delivering an executed counterpart of this Amendment by email with scanned attachment also shall deliver an original executed counterpart, but the failure to deliver such an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment. | 26Counterparts
|
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. The courts of the State of Delaware shall have exclusive jurisdiction over any disputes or other proceedings relating to this Agreement, and venue shall reside with the courts in New Castle County, Delaware, including if jurisdiction shall so permit, the U.S. District Court for the District of Delaware. Accordingly, the Optionee agrees that any claim of any type relating to this Agreement must be brought and maintained in the appropriate court located in New Castle County, Delaware, including if jurisdiction will so permit, in the U.S. District Court for the State of Delaware. The Optionee hereby consents to the jurisdiction over the Optionee of any such courts and waives all objections based on venue or inconvenient forum. | 94Venues
|
No waiver or non-action by either party hereto with respect to any breach by the other party of any provision of this Agreement or the LLC Agreement shall be deemed or construed to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself. | 63No Waivers
|
Executive will be entitled to paid vacation in accordance with the policies and practices of Company as in effect from time to time with respect to the Company’s senior executives, but in no event will such vacation time be less than four (4) weeks per calendar year. | 93Vacations
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Executive will remain eligible for COBRA coverage after August 31, 2017 at Executive's sole cost. Executive shall not be eligible for the Company's benefit plans and programs after the Separation Date. | 12Benefits
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Except as disclosed in the SEC Documents, the Company (after giving effect to the transactions contemplated by this Agreement) is solvent ( i.e ., its assets have a fair market value in excess of the amount required to pay its probable liabilities on its existing debts as they become absolute and matured) and currently the Company has no information that would lead it to reasonably conclude that the Company would not, after giving effect to the transaction contemplated by this Agreement, have the ability to, nor does it intend to take any action that would impair its ability to, pay its debts from time to time incurred in connection therewith as such debts mature. | 80Solvency
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The indemnifications made pursuant to Article 10 herein shall continue indefinitely in full force and effect and shall survive and shall in no way be impaired by (a) any satisfaction, release or other termination of this Mortgage or any other Loan Document, (b) any assignment or other transfer of all or any portion of this Mortgage or any other Loan Document or Mortgagee’s interest in the Property (but, in such case, such indemnifications shall benefit both the Indemnified Parties and any such assignee or transferee), (c) any exercise of Mortgagee’s rights and remedies pursuant hereto, including, but not limited to, foreclosure or acceptance of a deed in lieu of foreclosure, any exercise of any rights and remedies pursuant to the Loan Agreement, the Note or any of the other Loan Documents, any transfer of all or any portion of the Property (whether by Mortgagor or by Mortgagee following foreclosure or acceptance of a deed in lieu of foreclosure or at any other time), (d) any amendment to this Mortgage, the Loan Agreement, the Note or any other Loan Document, and/or (e) any act or omission that might otherwise be construed as a release or discharge of Mortgagor from the Obligations or any portion thereof. | 85Survival
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From time to time prior to, at, and after the Closing, each Party shall execute and deliver all such documents and instruments and take all such actions as the other Party, being advised by counsel, shall reasonably request for the purpose of carrying out and effectuating the intent and purpose of this Agreement and the transactions contemplated hereby, including, without limitation, the execution and delivery of any and all confirmatory and other instruments, in addition to those to be delivered at the Closing, and any and all actions which may reasonably be necessary to effect the transactions contemplated hereby. | 45Further Assurances
|
In the event that for any reason one or more of the provisions of this Note or their application to any person or circumstance shall be held to be invalid, illegal, or unenforceable in any respect or to any extent, such provision shall nevertheless remain valid, legal, and enforceable in all other respects and to such extent as may be permissible. In addition, any such invalidity, illegality, or unenforceability shall not affect any other provisions of this Note, but this Note shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. | 79Severability
|
This Release will be construed and enforced in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law. If any provision of this Release is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however , the remaining provisions will be enforced to the maximum extent possible. The Parties acknowledge and agree that, except as otherwise set forth herein, this Release constitutes the entire agreement and complete understanding of the Parties with regard to the matters set forth herein and, except as otherwise set forth in this Release, supersedes any and all agreements (including without limitation the Employment Agreement), understandings, and discussions, whether written or oral, between the Parties. No other promises or agreements are binding unless in writing and signed by each of the Parties after the Release Effective Date (as defined below). Should any provision of this Release require interpretation or construction, it is agreed by the Parties that the entity interpreting or constructing this Release shall not apply a presumption against one party by reason of the rule of construction that a document is to be construed more strictly against the Party who prepared the document. The Parties agree to bear their own attorneys’ fees and costs with respect to this Release. | 59Miscellaneous
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This Agreement and the Loan Documents, together with all of the rights and obligations of the parties hereto, shall be construed, governed and enforced in accordance with the internal laws of the State of New York, including Section 5-1401 of its General Obligations Law. | 47Governing Laws
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