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Upon the termination of the Term and any termination of this Agreement, the obligations of the parties under Sections 4 and 5 shall survive and continue in effect in accordance with their terms. | 85Survival
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Borrower and each of its Subsidiaries shall: (a) be in compliance in all material respects with any and all Requirements of Law to which it is subject, whether foreign, federal, state or local, including, without limitation, Environmental Laws and Requirements of Law applicable to Regulated Products; and (b) timely satisfy all assessments, fines, costs and penalties imposed (after exhaustion of all appeals, provided a stay has been put in effect during such appeal) by any Governmental Authority against Borrower or any of its Subsidiaries or any Property of Borrower or any of its Subsidiaries, except where (i) Borrower or such Subsidiary is contesting any Requirement of Law in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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Notwithstanding Section 8.09( b) , if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, except to the extent prohibited by law, with the prior written consent of the Administrative Agent, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or any such Affiliate to or for the credit or the account of any Loan Party against any or all of the obligations of the Borrower and the other Loan Parties now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document for amounts then due and owing and although such obligations may be unmatured; provided , that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. | 0Adjustments
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If any term or provision of this Termination or any application thereof shall be invalid or enforceable, the remainder of this Termination and any other application of such term or provision shall not be affected thereby. | 79Severability
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During the Term, Executive shall receive (i) reimbursement from the Company for all reasonable and documented out-of-pocket expenses incurred by Executive in performing services hereunder, (ii) up to $1,000 per month to cover the cost of temporary housing (e.g., a small apartment) for up to six (6) months from the Effective Date, and (iii) in the case Executive relocates to within commuting distance of the Company during the twelve (12) month period following the Effective Date, up to $50,000 to cover costs attributable to such relocation; provided , (x) in each case, that such expenses are accounted for in accordance with the standard policies and procedures established by the Company for reimbursement of expenses. | 41Expenses
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The Restricted Shares shall be subject to the adjustment provisions contained in the Plan in the event of any change in the outstanding Shares by reason of a stock split, stock dividend, combination or reclassification of shares, recapitalization, merger, or similar event. | 0Adjustments
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Your employment shall terminate in the event of your death. In the event that employment hereunder is terminated due to your death, your estate or beneficiaries (as the case may be) shall be entitled to a single sum cash amount, payable within sixty (60) days following the Termination Date, in an amount equal to the Accrued Obligations. | 27Death
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The article and section headings herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof. | 48Headings
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In the event that any provision of this Security Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Security Agreement shall continue in full force and effect without said provision; provided , that in such case the parties shall negotiate in good faith to replace such provision with a new provision which is not illegal, unenforceable or void, as long as such new provision does not materially change the economic benefits of this Security Agreement to the parties. | 79Severability
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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. | 26Counterparts
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The Borrower shall use the proceeds of all Loans (a) to finance the Refinancing, (b) to pay any upfront fees with respect to the Loans, and (c) for working capital, capital expenditures and other lawful corporate purposes (including, at the option of the Borrower, for the payment of the fees and expenses incurred in connection with the Transactions, this Agreement and other transactions incidental thereto). | 92Use Of Proceeds
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The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits thereto. | 23Construction
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The Company shall continue to employ Executive, and Executive accepts such continued employment, on the terms and conditions set forth in this Agreement. The “Initial Term” of this Agreement is the period commencing on the Effective Date and expiring at the earlier to occur of (a) 11:59 p.m. on the first anniversary of the Effective Date (the “ Expiration Date ”) or (b) the Termination Date (as defined in Section 4 ); provided, however, that, if the Termination Date has not occurred, the term of this Agreement shall be automatically renewed for the twelve (12) month period immediately following the Expiration Date and each twelve (12) month period ending thereafter (each, a “ Renewal Term ” and, together with the Initial Term, the “ Term ”), unless either the Company or Executive provides written notice to the other Party of his or its election not to renew this Agreement at least thirty (30) days prior to the last day of the then-current Term. Executive’s employment hereunder shall be coterminous with the Term, and termination of Executive’s employment and the Term shall be simultaneous. | 89Terms
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The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless Shareholder Approval is obtained before the closing of such subsequent transaction. | 52Integration
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All Authorizations necessary under applicable Laws to be obtained by Subject Companies for the conduct of its business have been duly obtained, were validly issued, are in full force and effect, are not subject to appeal, and are free from conditions or requirements, compliance with which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The information set forth in each application and all other written materials submitted by or on behalf of a Subject Company to the applicable Government Authority in connection with each such Authorization is accurate and complete in all material respects and does not omit to state any material fact necessary to make such information not misleading. The Subject Companies are in compliance in all material respects with the terms and conditions of each Authorization described in the first sentence hereof. | 10Authorizations
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This Agreement shall be binding upon the Seller upon the Seller’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the consummation of the Transactions. In the event that the Share Exchange Agreement is validly terminated in accordance with its terms prior to the consummation of the Transactions, this Agreement shall automatically terminate and become null and void, and the parties shall have no obligations hereunder. | 34Effectiveness
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The Company will pay to Rodman at closing thirty-five thousand dollars ($35,000) non-accountable expenses in connection with each Closing Date. Such expense payment, plus the additional reimbursable amount payable by the Company pursuant to Section C below, shall constitute the aggregate total of all expense payments or reimbursements under this Agreement. | 41Expenses
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This Agreement may not be amended, modified or terminated except by a writing signed by the Corporation and Grantee. | 2Amendments
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Subject to the limitations set forth in and except as otherwise specifically provided by this Agreement, the provisions of this Agreement that contemplate performance after the Closing (and, if no specific survival period is expressly set forth herein, the covenants, agreements, indemnities, representations, warranties and other undertakings of Seller shall survive the Closing for only the period during which Seller’s representations and warranties survive the Closing in accordance with Section 7.3 above) and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing. | 85Survival
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This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The exchange of copies hereof, including signature pages hereto, by facsimile, e-mail or other means of electronic transmission shall constitute effective execution and delivery hereof as to the parties and may be used in lieu of the original letter agreement for all purposes and shall be deemed to be original signatures for all purposes. | 26Counterparts
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The Company may withhold from any amounts payable to the Executive hereunder all federal, state, local, or other taxes that the Company may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein). | 99Withholdings
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Each Lender shall, in accordance with its Pro Rata Share, indemnify Agent (to the extent not reimbursed by Borrowers) upon demand against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction) that Agent may suffer or incur in connection with the Financing Documents or any action taken or omitted by Agent hereunder or thereunder. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Required Lenders until such additional indemnity is furnished. | 49Indemnifications
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Interest (the “ Interest ”) shall accrue on the unpaid Vested portion of Principal from the first day of the applicable measurement year to which the Vested portion of Principal applies until such Vested portion of Principal is repaid in full at the rate of eight percent (8%) per annum, compounding annually. The portion of accrued, but unpaid, Interest on the Vested portion of the Principal is payable at Maturity. All computations of the Interest rate hereunder shall be made on the basis of a 360-day year of twelve 30-day months. In the event that any Interest rate provided for herein shall be determined to be unlawful, such Interest rate shall be computed at the highest rate permitted by applicable law. Any payment by the Company of any Interest amount in excess of that permitted by law shall be considered a mistake, with the excess being applied to the Principal of this Note without prepayment premium or penalty. | 54Interests
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As of the Amendment No. 2 Effective Date, the Loan Parties on a consolidated basis are, and immediately after giving effect to the Amendment No. 2 Transactions (and the payment of fees and expenses in connection therewith) will be, Solvent. | 80Solvency
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Except as set forth on Schedule 7.14 or as disclosed in writing to the Administrative Agent from time to time (which shall promptly furnish a copy to the Lenders), which shall upon disclosure be deemed a supplement to Schedule 7.14 , neither the Borrower nor any other Credit Party has any subsidiaries (other than subsidiaries of Unrestricted Subsidiaries). Neither Parent Guarantor nor the Borrower has any Foreign Subsidiaries. Schedule 7.14 identifies, as of the Effective Date, each subsidiary listed thereon as either a Restricted Subsidiary, Unrestricted Subsidiary or Unrestricted Parent Entity, and each Restricted Subsidiary on such schedule is wholly-owned by the Borrower or another Restricted Subsidiary. As of the Effective Date, Schedule 7.14 sets forth each Person (other than a subsidiary) in which Parent Guarantor, the Borrower or a Restricted Subsidiary owns Equity Interests and the percentage of all Equity Interests in such Person owned by Parent Guarantor, the Borrower or such Restricted Subsidiary. | 83Subsidiaries
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The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted; provided that (i) the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 and (ii) neither the Borrower nor any of its Subsidiaries shall be required to preserve any right, license, permit, privilege, franchise, patent, copyright, trademark, trade name or other intellectual property rights which in the reasonable good faith determination of the Borrower or such Subsidiary are not material to the conduct of the business of the Borrower or its Subsidiaries. | 40Existence
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This Agreement and any Trucking Service Order may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties hereto, each of which counterparts will be deemed an original, but all of which counterparts together will constitute one and the same agreement. | 26Counterparts
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The Borrower shall pay to the Administrative Agent and the Arrangers for its own account the fees, in the amounts and on the dates, set forth in the Fee Letter and such other fees as may from time to time be agreed between the Borrower and the Administrative Agent or Arrangers. | 42Fees
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This Assignment and Assumption Agreement (i) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, (ii) may be executed in counterparts (including by electronic transmission), each of which shall be deemed to be an original and all together shall be deemed to be one and the same agreement, and (iii) may be modified or amended only by written agreement executed by each of the parties hereto. Signatures provided by facsimile transmission or by electronic delivery in . pdf or similar electronic format shall be deemed to be original signatures. | 59Miscellaneous
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The provisions of this Article 6 6 will survive and not be affected by termination or cancellation of this Agreement or Final Completion of the Work. | 85Survival
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Any notice, demand or other communication which any party hereto may be required, or may elect, to give to anyone interested hereunder shall be sufficiently given if (a) deposited, prepaid, with a recognized international courier service, (b) delivered personally, (c) upon the expiration of twenty four (24) hours after transmission, if sent by facsimile if a confirmation of transmission is produced by the sending machine (and a copy of each facsimile promptly shall be sent as provided in clause (a)), in each case to Purchaser at his address set forth below his signature to this Agreement and, in the case of the Company at 360 Motor Parkway, Suite 100, Hauppauge, New York 11788 the address set forth above Attention: Michael Recca, facsimile number (631) 206-9152, email address at mer @airindustriesgroup.com (or at such other address for a party as shall be specified by like notice; provided that the notices of a change of address shall be effective only upon receipt thereof). | 65Notices
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The Executive acknowledges that a remedy at law for any breach or attempted breach of the Executive’s obligations under Sections 12 and 13 may be inadequate, agrees that the Company may be entitled to specific performance and injunctive and other equitable remedies in case of any such breach or attempted breach, and further agrees to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. The Company shall have the right to offset against amounts paid to the Executive pursuant to the terms hereof any amounts from time to time owing by the Executive to the Company. The termination of the Agreement shall not be deemed a waiver by the Company of any breach by the Executive of this Agreement or any other obligation owed the Company, and notwithstanding such a termination the Executive shall be liable for all damages attributable to such a breach. | 75Remedies
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This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia without regard to its principles of conflicts of laws . Executive: agrees to submit to the jurisdiction of the State of Georgia; agrees that any dispute concerning this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction in Georgia; and agrees that other than disputes involving SECTION 4 or SECTION 5, all disputes shall be settled through arbitration pursuant to SECTION 6.15. Executive waives any and all objections to jurisdiction or venue . | 47Governing Laws
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Notices required or permitted hereunder shall be in writing and shall be delivered personally or by mail, postage prepaid, addressed to Raytheon Company, 870 Winter Street, Waltham, Massachusetts 02451, Attention: Vice President, Human Resources and Global Security, and to you at your address as shown on the Company’s payroll records. | 65Notices
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The Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock upon conversion in a name other than that in which the shares of the Series A Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid. The Company shall withhold from any payment due whatsoever in connection with the Series A Convertible Preferred Stock any and all required withholdings and/or taxes the Company, in its sole discretion deems reasonable or necessary, absent an opinion from Holder’s accountant or legal counsel, acceptable to the Company in its sole determination, that such withholdings and/or taxes are not required to be withheld by the Company. | 87Taxes
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The Company shall reimburse the Lead Investor (a Buyer) or its designee(s) (in addition to any other expense amounts paid to any Buyer or its counsel prior to the date of this Agreement) for all costs and expenses incurred in connection with the transactions contemplated by the Transaction Documents (including all legal fees and disbursements in connection therewith, documentation and implementation of the transactions contemplated by the Transaction Documents and due diligence in connection therewith), which amount may be withheld by such Buyer from its purchase price for any Notes purchased at the Closing to the extent not previously reimbursed by the Company and which shall not exceed $75,000. (the “ Lead Investor Counsel Amount ”). In addition to the Lead Investor Counsel Amount, the Company shall reimburse Kelley Drye & Warren LLP for all costs and expenses incurred in connection with the transactions contemplated by the Transaction Documents (including all legal fees and disbursements in connection therewith, documentation and implementation of the transactions contemplated by the Transaction Documents and due diligence in connection therewith), which amount may be withheld by such Buyer in which Kelley Drye & Warren LLP is acting as legal representative in connection herewith (as disclosed across from such Buyer’s name in column (5) of the Schedule of Buyers) from its purchase price for any Notes purchased at the Closing to the extent not previously reimbursed by the Company and which shall not exceed $15,000. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby, including, without limitation, any fees or commissions payable to the Placement Agent. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorney’s fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Notes to the Buyers. | 42Fees
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A Director becomes a Participant upon the later of (a) March 1, 2017, or (b) the date on which such Director first commences service as a member of the Company’s Board of Directors. | 67Participations
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(a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any and all Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of any Withholding Agent) requires the deduction or withholding of any Taxes from or in respect of any such payment, (i) the applicable Withholding Agent shall make such deduction or withholding, (ii) the applicable Withholding Agent shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased by the amount necessary such that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.09) the applicable Recipient receives the amount equal to the sum it would have received had no such deduction or withholding been made. | 87Taxes
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Borrower, JV Pledgor and Guarantor each represent and warrant, that this Amendment constitutes a legal, valid and binding obligation of such party, enforceable against such party, in accordance with its terms, subject to bankruptcy, insolvency and other limitations on creditors’ rights generally and to equitable principles. Borrower, JV Pledgor and Guarantor each represent and warrant that as of the Amendment Date, the execution and delivery by such party of this Amendment and the performance of its respective obligations hereunder: (i) have been duly authorized by all requisite action on the part of such party; (ii) will not violate any provision of any applicable legal requirements, decree, injunction or demand of any court or other governmental authority, any organizational document of such party, or any indenture or agreement or other instrument to which such party is a party or by which such party is bound; (iii) will not be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or result in the creation or imposition of any lien of any nature whatsoever upon any of the property or assets of such party pursuant to any such indenture or agreement or instrument; (iv) has been duly executed and delivered by such party; (v) except for those obtained or filed on or prior to the Amendment Date, it is not required to obtain any consent, approval or authorization from, or to file any declaration or statement with, any governmental authority or other agency in connection with or as a condition to such party’s execution, delivery or performance of this Amendment; and (vi) this Amendment has been duly executed and delivered. | 76Representations
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This Letter Agreement may be executed in any number of counterparts and by the different Parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, when taken together, shall constitute but one agreement. This Letter Agreement may be executed by facsimile signature and each such facsimile signature shall be treated in all respects as having the same effect as an original signature. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to its rules relating to conflict of laws. If any provision of this Letter Agreement is held to be invalid or unenforceable for any reason, the Parties agree to negotiate in good faith an alternative provision that is not invalid or unenforceable and that carries out, as nearly as possible, the intent and purposes of the provision so held to be invalid or unenforceable. Each Party shall take such further actions, as may be reasonably requested by the other Party, that are necessary to effectuate the intention of the terms of this Letter Agreement. This Letter Agreement shall be binding on each Party’s successors and permitted assigns. No Party shall assign this Letter Agreement or its rights hereunder without the prior written consent of each of the other Parties. | 59Miscellaneous
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If a provision of this Escrow Agreement is deemed to be contrary to law, that provision will be deemed separable from the remaining provisions of this Escrow Agreement, and will not affect the validity, interpretation or effect of the other provisions of either this Escrow Agreement or any agreement executed pursuant to it or the application of that provision to other circumstances not contrary to law. | 79Severability
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The “Effective Date” of the Plan is January 1, 2017. | 33Effective Dates
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The recitals set forth above are true and correct, and incorporated herein by reference. Capitalized terms used but not defined in this First Amendment shall have the meanings ascribed to them in the Note . | 29Definitions
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Neither the Company, nor any of its affiliates, nor any Person acting on any of their behalf has, directly or indirectly, made any offers or sales of any securities or solicited any offers to buy any securities, under circumstances that would require registration of any of the securities of the Company under the 1933 Act, whether through integration with prior offerings or otherwise, or cause the Acquisition to require approval of stockholders of the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions. Neither the Company, any of its affiliates nor any Person acting on any of their behalf will take any action or steps that would require registration of any of the securities of the Company under the 1933 Act or cause the offer and sale of the 2,900,000 Shares to the Investor to be integrated with other offerings of securities of the Company. | 52Integration
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This Agreement shall be effective as of the date hereof and shall be binding upon and inure to the benefit of, the parties and their respective heirs, successors, assigns, and personal representatives, as the case may be. The Executive may not assign any rights or duties under this Agreement. As used herein, the successors of the Company shall include, but not be limited to, any successor by way of merger, consolidation, sale of all or substantially all of the assets, or similar reorganization or change in control. | 7Assignments
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The Company shall defend and indemnify members of the Board, officers and Employees of the Company or of a Parent or Subsidiary whom authority to act for the Board, the Administrator or the Company is delegated (" Indemnitees ") to the maximum extent permitted by law against (i) all reasonable expenses, including reasonable attorneys' fees incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein (collectively, a " Claim "), to which any of them is a party by reason of any action taken or failure to act in connection with the Plan, or in connection with any Award granted under the Plan; and (ii) all amounts required to be paid by them in settlement the Claim (provided the settlement is approved by the Company) or required to be paid by them in satisfaction of a judgment in any Claim. However, no person shall be entitled to indemnification to the extent he is determined in such Claim to be liable for gross negligence, bad faith or intentional misconduct. In addition, to be entitled to indemnification, the Indemnitee must, within 30 days after written notice of the Claim, offer the Company, in writing, the opportunity, at the Company's expense, to defend the Claim. The right to indemnification shall be in addition to all other rights of indemnification available to the Indemnitee. | 49Indemnifications
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This Agreement may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrower , the Administrative Agent and the requisite Lenders in accordance with Section 10.1 of the Credit Agreement. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. | 2Amendments
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Each Grantor shall, (i) in addition to executing and delivering this Agreement, take such other action as the Administrative Agent may reasonably request, to perfect the Administrative Agent’s security interest in the Intellectual Property; (ii) promptly after requested by the Administrative Agent, or quarterly with respect to registered Intellectual Property that has been created or acquired by any Grantor after the date hereof which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, provide a supplement to Schedule 6 to include any Intellectual Property which becomes part of the Collateral and which was not included on Schedule 6 as of the date hereof as supplemented hereunder and, if requested by the Administrative Agent, record an amendment to this Agreement or enter into and record an Intellectual Property Security Agreement (or an amendment to an Intellectual Property Security Agreement) with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, and take such other action as may be necessary, or as the Administrative Agent or the Required Lenders may reasonably request, to perfect the Administrative Agent’s security interest in such Intellectual Property. | 53Intellectual Property
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Any dispute regarding the interpretation of this Agreement shall be submitted by the Holder or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Holder and the Company. | 55Interpretations
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The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided , that no such amendment, alteration, suspension, discontinuance or termination shall be made without stockholder approval if (i) such approval is necessary to comply with any regulatory requirement applicable to the Plan (including, without limitation, as necessary to comply with any rules or regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company may be listed or quoted) or for changes in GAAP to new accounting standards; (ii) it would materially increase the number of securities which may be issued under the Plan (except for increases pursuant to Section 5 or 14 of the Plan); or (iii) it would materially modify the requirements for participation in the Plan; provided , further , that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary. Notwithstanding the foregoing, no amendment shall be made to the Section 15(c) of the Plan without stockholder approval. | 2Amendments
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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 together constitute one and the same instrument. | 26Counterparts
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If any legal proceeding is instituted by any Party to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs incurred in connection with such proceeding. | 37Enforcements
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This Tenth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Tenth Amendment by electronic transmission shall be effective as delivery of a manually executed counterpart hereof. | 26Counterparts
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The Company shall use the net proceeds from the sale of the Securities hereunder as set forth in the Prospectus Supplement, and otherwise for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, and (c) for the settlement of any outstanding litigation. | 92Use Of Proceeds
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The Executive’s employment shall terminate automatically upon the Executive’s death prior to the Expiration Date. | 27Death
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Except as may have otherwise been disclosed in the Form 10-Ks or the Form 10-Qs, the books and records of the Company and the Subsidiaries accurately reflect in all material respects the information relating to the business of the Company and the Subsidiaries, the location and collection of their assets, and the nature of all transactions giving rise to the obligations or accounts receivable of the Company, or the Subsidiaries. Except as disclosed in the Company’s Commission Documents or on Schedule 2.1(r) , the Company and the Subsidiaries maintain a system of internal accounting controls sufficient, in the judgment of the Company, to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate actions are taken with respect to any differences. | 14Books
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This 2017-B Servicing Supplement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to any otherwise applicable principles of conflict of laws. | 47Governing Laws
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Each loan bears interest at a reasonable rate established by the Committee from time to time on the basis of rates currently charged by commercial lenders. The Plan charges interest on loans in a uniform and nondiscriminatory manner. Effective January 1, 2004, for any period when a Participant is on a Qualified Military Service leave, he/she may submit a written request to the Committee to charge an interest rate not greater than 6% (or such other rate prescribed by the Servicemembers Civil Relief Act or other applicable law) on any loan that he/she has outstanding during that period (see Subsection (k) below). | 54Interests
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The Company may use the proceeds from the sale of the Securities hereunder to repurchase or pay amounts due under the Convertible Notes currently outstanding, for working capital purposes and/or for general corporate purposes. | 92Use Of Proceeds
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Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal place of business, attention: Secretary, and, if to the Participant, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid, return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient. Notwithstanding the foregoing, any notice required or permitted hereunder from the Company to the Participant may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Participant, and the Participant hereby consents to receive such notice by electronic delivery. To the extent permitted in an electronically delivered notice described in the previous sentence, the Participant shall be permitted to respond to such notice or communication by way of a responsive electronic communication, including by electronic mail. | 65Notices
|
SavingsPLUS Restoration Credits shall be immediately 100% vested. | 95Vesting
|
Promptly after the commencement thereof, notice of all actions, suits, proceedings or investigations before or by any Official Body or any other Person against any Loan Party or Subsidiary of any Loan Party which involve a claim or series of claims in excess of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) or which would reasonably be expected to have a Material Adverse Change. | 58Litigations
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The services to be rendered by Executive under this Agreement are unique and personal. Accordingly, Executive may not assign any of Executive’s rights or duties under this Agreement. Any such assignment or attempted assignment shall be void. | 7Assignments
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The Committee may impose such restrictions or conditions, not inconsistent with the provisions of this Plan, to the vesting of such Performance Awards as it deems appropriate, including the achievement of one or more of the Performance Goals. | 95Vesting
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In the event any dispute arises between any Members to this Agreement with respect to this Agreement or the Company, then upon written request of one Member served on the other Member, the matter shall be submitted promptly for arbitration with JAMS or the McCammon Group in accordance with their rules then pertaining unless the parties mutually agree otherwise. The Members shall cooperate in good faith to agree upon an arbitrator or arbitrators and shall proceed in accordance with any rules or requests of the arbitrator(s). If the Members are unable to agree on an arbitrator within seven (7) days after being provided with bios of the arbitrators, then the arbitrator shall be chosen by the selected arbitration tribunal. The arbitration shall be held in the Commonwealth of Virginia, unless the parties otherwise agree. The cost of such arbitration shall be split equally among the Members. If a Member does not agree to go to arbitration, as the case may be, then that party shall be liable for the other party’s reasonable legal fees in any subsequent litigation regarding that same matter in which the party who refused to go to arbitration loses in that subsequent litigation. The award rendered by the arbitrator shall be final and binding, and judgment may be entered upon the award in accordance with applicable law in any United States court of competent jurisdiction. | 46General
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Owner agrees that, from and after the Closing, Owner will not directly or indirectly engage in any conduct that involves the making or publishing (including through electronic mail distribution or online social media) of any written or oral statements or remarks (including the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of one or more Covered Parties or their respective management, officers, employees, independent contractors or consultants. Notwithstanding the foregoing, subject to Section 3 below, the provisions of this Section 2(c) shall not restrict Owner from providing truthful testimony or information in response to a subpoena or investigation by a Governmental Authority or in connection with any legal action by Owner against any Covered Party under this Agreement, the Merger Agreement or any other Ancillary Document that is asserted by Owner in good faith. | 64Non-Disparagement
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This Fourth Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. | 75Remedies
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By signing this Agreement, the Optionee (i) consents to the electronic delivery of this Agreement, all information with respect to the Plan and the Option and any reports of the Company provided generally to the Company’s stockholders; (ii) acknowledges that the Optionee may receive from the Company a paper copy of any documents delivered electronically at no cost to the Optionee by contacting the Company by telephone or in writing; (iii) further acknowledges that the Optionee may revoke the Optionee’s consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) further acknowledges that the Optionee understands that the Optionee is not required to consent to electronic delivery of documents. | 22Consents
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The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place electronically by the mutual exchange of facsimile or portable document format (.PDF) signatures, commencing at 10:00 a.m. New York City time on the first calendar day of the month on or following the first date upon which all conditions to Closing set forth in Article 5 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) or waived, or as otherwise mutually agreed to by the Parties (the “ Closing Date ”). All transactions contemplated herein to occur on and as of the Closing Date shall be deemed to have occurred simultaneously and to be effective as of 12:01 a.m. New York City time on such date. | 18Closings
|
Each party agrees to maintain in confidence through the Closing, unless otherwise required by applicable law, reporting requirements or accounting or auditing standards to disclose, all material and information received from the other party or otherwise regarding the Properties and the other matters which are the subject of this Agreement. In the event this Agreement is terminated, the Partnership shall promptly return or destroy all materials delivered to such party by the other parties. The Contributors and the Partnership agree that none of them, without the prior written consent of the other, shall publicly or privately reveal any information relating to the existence or terms and conditions of the transactions contemplated hereby, except as permitted below in this Section. The Contributors and the Partnership further agree that nothing in this Section shall prevent any of them from disclosing or accessing any information otherwise deemed confidential under this Section to its respective agents, employees, counsel and other third parties to the extent reasonably necessary to perform due diligence and complete the transactions contemplated hereby. Notwithstanding anything to the contrary contained herein, the Partnership shall have the sole right to determine the form, timing and substance of, and to issue, all publicity concerning the transactions contemplated by this Agreement. Prior to the Closing, any release to the public of information with respect to the transfer contemplated herein or any matters set forth in this Agreement will be made only in the form mutually approved by the Partnership and the Contributors. In addition, following the Closing, the Contributors shall not issue a press release or otherwise communicate with media representatives regarding the transactions contemplated by this Agreement unless such release or communication has received the prior written approval of the Partnership, such consent not to be unreasonably withheld or denied if the substance of the release or communication is factual. Notwithstanding the foregoing, nothing set forth in this Section 11.1 shall preclude or be deemed to preclude a party from making (and a party may make) such disclosures as may be required pursuant to law or the order, decree, policy or rule of any court, regulatory or administrative authority or body, and the form of such disclosure shall not be subject to this Section 11.1 . The provisions of this Section 11.1 shall survive any termination of this Agreement. Notwithstanding anything to the contrary set forth in this Section 11.1 , at any time, the Partnership, the Contributors and their affiliates may make such filings and disclosures with the SEC as are required (in such party’s good faith judgment and based upon the advice of outside counsel) in connection with the matters contemplated by this Agreement including, without limitation, any Form 8-K filing requirement of the Company and/or the Partnership in connection herewith. The parties acknowledge that the Company expects to file a Form 8-K on both the Effective Date and at Closing, and also expects to file this Agreement in its first quarterly report required by the SEC subsequent to the Effective Date. | 20Confidentiality
|
None of this Agreement, any other Loan Document, any schedule or exhibit thereto or document, certificate, report, statement or other information furnished to the Bank in connection herewith or therewith or in connection with the consummation of the transactions contemplated hereby or thereby contains any material misstatement of fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading. | 31Disclosures
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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. | 84Successors
|
If the Total Credit Exposure of any Lender is increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such increase and the Increase Effective Date. | 33Effective Dates
|
All capitalized terms herein shall have the meaning as defined in the Sublease unless stated to the contrary herein. | 28Defined Terms
|
If any term, part or provision of this Agreement is invalid or illegal, the validity of the Agreement's other terms, parts and provisions shall not be affected thereby and said invalid or illegal term, part or provision shall be deemed not to be a part of this Agreement. | 79Severability
|
If any one or more of the provisions in this Facility IP License or any application of such provision is held to be invalid, illegal or unenforceable in any respect by a competent tribunal, the validity, legality and enforceability of the remaining provisions in this Facility IP License and all other applications of the remaining provisions shall not in any way be affected or impaired by such invalidity, illegality or unenforceability. | 79Severability
|
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Lease. | 28Defined Terms
|
This Agreement may be amended by mutual agreement of Acquiring Company, Target Company, and all of the Shareholders. Any such amendment must be by an instrument in writing signed on behalf of each of the parties hereto. | 2Amendments
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This Agreement may be executed and delivered (including by email or facsimile transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. | 26Counterparts
|
Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans as further provided herein. | 46General
|
The Borrowers and each other Credit Party agrees to, and to cause any other Credit Party to, take all further actions and execute all further documents as the Agent may (or at the direction of the Lender, shall) from time to time reasonably request to carry out the transactions contemplated by this Fifth Amendment and Waiver and all other agreements executed and delivered in connection herewith. | 45Further Assurances
|
The Company shall, by 8:30 a.m. (New York City time) on the fourth trading day immediately following a Closing hereunder, issue a Current Report on Form 8-K disclosing the material terms of the transactions contemplated hereby and including the Transaction Documents as exhibits thereto to the extent required by law. The Company shall not publicly disclose the name of Subscriber, or include the name of any Subscriber in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of Subscriber, except: (a) as required by federal securities law in connection with the filing of final Transaction Documents (including signature pages thereto) with the SEC and (b) to the extent such disclosure is required by law, in which case the Company shall provide the Subscriber with prior notice of such disclosure permitted under this clause (b). | 71Publicity
|
The Borrower agrees to defend, indemnify and hold harmless the Administrative Agent and the Lenders (and their respective Affiliates, officers, directors, attorneys, agents and employees) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees) or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against the Administrative Agent or any Lender in connection with any investigative, administrative or judicial proceeding (whether or not such Lender or the Administrative Agent shall be designated a party thereto) or any other claim by any Person (including Borrower or any other Credit Party) relating to or arising out of any Loan Document or any actual or proposed use of proceeds of the Loans or any of the Obligations, or any activities of any Company or its Affiliates; provided that no Lender nor the Administrative Agent shall have the right to be indemnified under this Section 11.7 for its own gross negligence or willful misconduct, as determined by a final and non-appealable judgment of a court of competent jurisdiction. All obligations provided for in this Section 11.7 shall survive any termination of this Agreement. | 49Indemnifications
|
In the event of any inconsistency between this Exhibit B and Section 5 of the Agreement, the terms and conditions of Section 5 shall prevail. | 55Interpretations
|
The registration rights granted under this Agreement will terminate at such time as there shall no longer be any Registrable Shares. | 88Terminations
|
The Company shall file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the SEC within four trading days of Purchaser’s purchase of each Note pursuant to this Agreement. From and after the issuance of such press release, the Company represents to the Purchaser that it shall have publicly disclosed all material, non-public information delivered to any of the Purchaser by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchaser or any of their Affiliates on the other hand, shall terminate. The Company and Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of Purchaser, or include the name of any Purchaser in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b). | 71Publicity
|
This Agreement and the Exhibits hereto and all documents delivered pursuant hereto constitute the final, entire, complete and exclusive agreement between the parties hereto pertaining to the subject matter hereof and expressly supersede any and all prior written and oral agreements and understandings between the parties hereto with respect to the subject matter hereof and thereof. | 38Entire Agreements
|
The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed by any WLR Party in accordance with the terms hereof and, accordingly, that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which Parent may be entitled at law or in equity. Each WLR Party hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief. | 81Specific Performance
|
The Guaranteed Parties agree that, except as provided in Section 7(e) , this Guaranty may be enforced only by the Administrative Agent, acting upon the instructions or with the consent of the Required Lenders as provided for in the Credit Agreement, and that no Guaranteed Party shall have any right individually to enforce or seek to enforce this Guaranty or to realize upon any Collateral or other security given to secure the payment and performance of the Guarantors’ obligations hereunder. The obligations of each Guarantor hereunder are independent of the Guaranteed Obligations, and a separate action or actions may be brought against each Guarantor whether or not action is brought against any of the Borrowers or any other Guarantor and whether or not any of the Borrowers or any other Guarantor is joined in any such action. Each Guarantor agrees that to the extent all or part of any payment of the Guaranteed Obligations made by any Person is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by or on behalf of any Guaranteed Party to a trustee, receiver or any other party under any Debtor Relief Laws (the amount of any such payment, a “ Reclaimed Amount ”), then, to the extent of such Reclaimed Amount, this Guaranty shall continue in full force and effect or be revived and reinstated, as the case may be, as to the Guaranteed Obligations intended to be satisfied as if such payment had not been received; and each Guarantor acknowledges that the term “Guaranteed Obligations” includes all Reclaimed Amounts that may arise from time to time. | 37Enforcements
|
The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent , the L/C Issuers and the Swing Line Lenders, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. | 85Survival
|
The Retention Award will become fully vested the earliest of (A) the first anniversary of the Effective Date; (B) the occurrence of a Change in Control; or (C) a Payment Eligible Termination. | 95Vesting
|
If the Participant’s Service terminates because of the death of the Participant, the Option, to the extent unexercised and exercisable for vested shares on the date on which the Participant’s Service terminated, may be exercised by the Participant’s legal representative or other person who acquired the right to exercise the Option by reason of the Participant’s death at any time prior to the expiration of one (1) year after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date. | 27Death
|
Except as otherwise provided in Paragraphs 3(b) and 3(c), the Units subject to this Award shall vest on the Scheduled Vesting Dates. | 46General
|
The execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby do not and will not (i) violate any provision of the Purchaser’s organizational documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Purchaser is a party or by which the Purchaser’s properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Purchaser or by which any property or asset of the Purchaser are bound or affected, except, with respect to clauses (ii) or (iii) (other than with respect to federal and state securities laws) for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, materially and adversely affect the Purchaser’s ability to perform its obligations under this Agreement. | 61No Conflicts
|
(a) Each Guarantor irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any other Secured Party, or any Affiliate of the foregoing, in any way relating to this Guaranty or the transactions relating hereto, in any forum other than the courts of the State of New York sitting in New York County, Borough of Manhattan, and of the United States District Court of the Southern District of New York sitting in New York County, Borough of Manhattan, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that the Administrative Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Guaranty against any Guarantor or its properties in the courts of any jurisdiction. | 56Jurisdictions
|
The date on which the Bank notifies the Company that it has received the documents and evidence set out in Schedule 1 in form and substance satisfactory to it or the Bank has waived the requirement of receipt of such documents or evidence that have not been received. | 33Effective Dates
|
The Corporation agrees to pay the Executive, as compensation for all services rendered by him to the Corporation during the period of his employment under this Agreement, base salary in an annual amount of no less than $300,000, which shall be payable in monthly, semi-monthly or bi-weekly installments in conformity with Corporation’s payroll practices for salaried employees. Such salary may be increased in the sole and absolute discretion of the Corporation’s Board of Directors or Compensation Committee thereof duly authorized by the Board to so act. The Board of Directors shall review the Executive’s base salary at least annually during his employment and may increase such salary as determined in its discretion. | 11Base Salary
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(a) Each of the Lenders and each Issuing Bank hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Bank, and none of Holdings, the Borrower or any other Loan Party shall have rights as a third party beneficiary of any of such provisions (other than with respect to the agency resignation provisions set forth in this Article VIII). It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. | 9Authority
|
Borrower will comply, and will cause each Subsidiary to comply, with all minimum funding requirements, and all other material requirements, of ERISA, if applicable, so as not to give rise to any liability thereunder. | 39Erisa
|
Each of the Lenders and each Issuing Bank hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except as expressly set forth in Section 8.6 and Section 8.10 , the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third party beneficiary of any of such provisions (other than Section 8.6 and Section 8.10 ). | 9Authority
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