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No Loan Party nor any of its Subsidiaries is in violation of any Sanctions. No Loan Party nor any of its Subsidiaries is in violation of any of the country or list based economic and trade sanctions administered and enforced by OFAC, the European Union or any of the governmental institutions and agencies of any European member states. No Loan Party nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has its assets located in Sanctioned Entities, (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities or (d) has received notice of any material action, suit, proceeding or investigation against it with respect to Sanctions from any Sanctions Authority. No proceeds of any Loan made hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity. Each Loan Party and each of its respective Subsidiaries conducts its businesses in compliance with applicable Anti-Corruption Laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with applicable Anti-Corruption Laws. The operations of each Loan Party and each of its respective Subsidiaries are, and have been, conducted at all times in compliance with applicable Anti-Money Laundering Laws. No material litigation, regulatory or administrative proceedings of or before any court, tribunal or agency with respect to any Anti-Money Laundering Laws have been started or (to the best of its knowledge and belief) threatened against any Loan Party or any of its respective Subsidiaries. | 78Sanctions
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Any communications between Lender and Guarantor and any notices or requests provided herein to be given may be given by delivering or mailing by certified mail, postage prepaid, return receipt requested, (a) to Lender at its address set forth on the first page of this Guaranty, and (b) to Guarantor at the addresses set forth on the first page of this Guaranty, or in each case to such other addresses as each such party may in writing hereafter indicate. Any notice given as set forth above shall be deemed to have been given when actually received or three days after mailing, whichever is earlier. | 65Notices
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Each Party will establish and maintain true and accurate books, records and accounts relating to their own transactions under this Agreement with respect to all Prices charged, payments made, and quantities of Product delivered hereunder. These books, records and accounts will be preserved by the applicable Party for a period of at least one (1) year after the expiration of the term of this Agreement, but in no event longer than seven (7) years from the date of creation. | 73Records
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Any notices regarding acceptance, rejection, revocation or any other matters arising under this Agreement shall be sent by a method of delivery which provides a receipt of delivery and shall be addressed as provided below. Any change of contact information listed below shall be promptly reported to the other party at the address below. Notices to Employee should be addressed to his home address on file with Team, as well as to [omitted]. Notices to Team should be addressed to either the SVP, Human Resources or the EVP, Chief Legal Officer for Team Industrial Services, Inc. located at 13131 Dairy Ashford, Suite 600, Sugar Land, Texas 77478. Such notice may be delivered by fax to 281.388.4411 or electronic mail (with confirmed receipt) to [email protected] or [email protected]. | 65Notices
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THE BORROWER AND EACH OTHER BORROWER PARTY 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 AGENT, ANY LENDER, ANY ISSUING LENDER, THE SWINGLINE LENDER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, 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 AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT, ANY LENDER, ANY ISSUING LENDER OR THE SWINGLINE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER BORROWER PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. | 82Submission To Jurisdiction
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This AMENDMENT may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof. | 26Counterparts
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Parent fails to comply with (a) the laws and regulations applicable to Parent (including, without limitation, ERISA) wherever its business is conducted, (b) the provisions of its charter documents and by‑laws, (c) any agreements and instruments by which it or any of its properties may be bound, or (d) any decrees, orders, and judgments applicable to Parent, except when such failure to comply with any of the foregoing would not materially adversely affect the business, property or financial condition of Parent and its Subsidiaries, taken as a whole; and such failure continues for fifteen (15) days after Notice thereof has been given to the Borrower by the Lender. If at any time while any portion of the Loans or any amount under this Agreement is outstanding, any authorization, consent, approval, permit or license from any officer, agency or instrumentality of any Governmental Authority shall become necessary or required in order that Parent may fulfill any of its obligations under the Parent Guarantee, Parent fails promptly to take or cause to be taken all reasonable steps within the power of Parent to obtain such authorization, consent, approval, permit or license and furnish the Lender with evidence thereof; and such failure continues for fifteen (15) days after Notice thereof has been given to the Borrower by the Lender. | 19Compliance With Laws
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The Borrower is a Delaware limited partnership. The Parent MLP, the Borrower and each other Restricted Subsidiary: (a) is duly organized or formed, legally existing and in good standing, if applicable, under the laws of the jurisdiction of its formation, except where failure to so exist or remain in good standing could not reasonably be expected to have a Material Adverse Effect, (b) has all requisite power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where failure to have such power could not reasonably be expected to have a Material Adverse Effect and (c) is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify could reasonably be expected to have a Material Adverse Effect. | 40Existence
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No representation or warranty by Purchaser contained in this Agreement or in any of the Transaction Documentation, and no statement contained in any document, certificate or other instrument delivered or to be delivered by or on behalf of Purchaser or any Purchaser Subsidiary pursuant to this Agreement or therein, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading. | 31Disclosures
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The Company shall file a Current Report on Form 8-K, including the Transaction Documents and a press release describing the transactions contemplated herein as exhibits thereto, with the SEC within the time required by the Exchange Act. 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 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 the Purchaser or any of its 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 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 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 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
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This Agreement may be executed in one or more counterparts, any one of which may be by portable document format (.pdf), by electronic means (including docusign or the like) or facsimile, and all of which taken together shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. | 26Counterparts
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There are no suits, arbitrations, claims, disputes or other proceedings (including, without limitation, any civil, criminal, administrative or environmental proceedings), pending or, to the best of the Borrower’s knowledge, threatened against or affecting the Borrower or any of the Properties, the adverse determination of which individually or in the aggregate would have a Material Adverse Effect on the Borrower and/or would cause a Material Adverse Financial Change of the Borrower or materially impair the Borrower’s ability to perform its obligations hereunder or under any instrument or agreement required hereunder, except as disclosed on Schedule 6.9 hereto, or otherwise disclosed to Lenders in accordance with the terms hereof. | 58Litigations
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This Note shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Note shall be brought only in the state and/or federal courts of New York, NY. The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens . The Borrower and Holder waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs. In the event that any provision of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. | 47Governing Laws
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This Guaranty may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement. Delivery of an executed counterpart of this Guaranty (or of any agreement or document required by this Guaranty and any amendment to this Guaranty) by telecopy or other electronic imaging means shall be as effective as delivery of a manually executed counterpart of this Guaranty; provided, however, that the telecopy or other electronic image shall be promptly followed by an original if required by the Bank. | 26Counterparts
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The execution, delivery and performance of the PMH Documents by PMH do not conflict with or constitute a default under, or result in the creation or imposition of any lien (other than pursuant to the PMH Documents) under, any material servicing agreement, participation agreement, agreement, partnership agreement, or other agreement or instrument to which PMH is a party or to which any of its property is subject, nor will such action result in any violation of the provisions of any statute of any Governmental Authority having jurisdiction over PMH, and any qualification of or with any governmental authority required for the execution, delivery, and performance by PMH of the PMH Documents has been obtained and is in full force and effect. | 61No Conflicts
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If within six months prior to, or within a year after a Change-in-Control , as defined by U. S. Treasury guidelines, the executive is involuntarily terminated or if he terminates employment for good reason, any outstanding awards would vest immediately at the target performance level on a prorated basis. | 17Change In Control
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The Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to September 30, 2017, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the 1934 Act. The Company represents that it is not a “shell” issuer and has never been a “shell” issuer, or that if it previously has been a “shell” issuer, that at least twelve (12) months have passed since the Company has reported Form 10 type information indicating that it is no longer a “shell” issuer. | 43Financial Statements
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Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.18(b) , (c) , (e) , (f) or (g) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of “Required Lenders,” “Guaranteed Party” or “Obligation” (or any term defined therein) or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vi) release all or substantially all of the value of the Guarantees under the Guaranty Agreement (except as expressly provided in Section 9.10 ) or limit its liability in respect of such Guarantee, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent without the prior written consent of the Administrative Agent. | 2Amendments
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For the purpose of the Plan, and except as specifically set forth herein, notices and all other communications provided for in the Plan shall be in writing and shall be deemed to have been duly given when hand-delivered or mailed by United States certified mail, return receipt requested, postage prepaid, addressed to the Participant or Employee at his or her last known address, and to the Company at Atlantic Capital Bank, N.A., 3280 Peachtree Road, Suite 1600, Atlanta, GA 30305, provided that all notices to the Company shall be directed to the attention of the Human Resources Department; or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt. | 65Notices
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The Lenders, the Administrative Agent, the Syndication Agent and the Collateral Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. | 42Fees
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Each Loan Party will, and will cause each of its Subsidiaries to, at Borrowers’ expense, maintain insurance respecting each of each Loan Party’s and its Subsidiaries’ assets wherever located, covering liabilities, losses or damages as are customarily are insured against by other Persons engaged in same or similar businesses and similarly situated and located. All such policies of insurance shall be with financially sound and reputable insurance companies acceptable to Agent and in such amounts as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and located and, in any event, in amount, adequacy, and scope reasonably satisfactory to Agent (it being agreed that the amount, adequacy, and scope of the policies of insurance of Borrowers in effect as of the Closing Date are acceptable to Agent). All property insurance policies are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests may appear, in case of loss, pursuant to a standard lender’s loss payable endorsement with a standard non-contributory “lender” or “secured party” clause and are to contain such other provisions as Agent may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies. All certificates of property and general liability insurance are to be delivered to Agent, with the lender’s loss payable and additional insured endorsements in favor of Agent and shall provide for not less than thirty days (ten days in the case of non-payment) prior written notice to Agent of the exercise of any right of cancellation. If any Loan Party or its Subsidiaries fails to maintain such insurance, Agent may arrange for such insurance, but at Borrowers’ expense and without any responsibility on Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Borrowers shall give Agent prompt notice of any loss exceeding $1,000,000.00 covered by the casualty or business interruption insurance of any Loan Party or its Subsidiaries. Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies. | 51Insurances
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Any disputes between the Parties as to the interpretation or any provision of this Agreement or the rights and obligations of any Party hereunder shall be resolved solely through binding arbitration as provided herein in New York, New York. | 46General
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If any provision of this Agreement is held unenforceable, then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect. | 79Severability
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To the fullest extent permitted by applicable law, the Company shall, and shall cause its controlled Affiliates to, indemnify and hold harmless each of the Covered Persons from and against any and all liabilities, obligations, losses, damages, fines, taxes and interest and penalties thereon (other than taxes based on fees or other compensation received by such Covered Person from the Company), claims, demands, actions, suits, proceedings (whether civil, criminal, administrative, investigative or otherwise), costs, expenses and disbursements (including reasonable and documented legal and accounting fees and expenses, costs of investigation and sums paid in settlement) of any kind or nature whatsoever (collectively, “ Claims and Expenses ”) which may be imposed on, incurred by or asserted at any time against such Covered Person in connection with the business or affairs of the Company or its controlled Affiliates or the activities of such Covered Person on behalf of the Company; provided, that a Covered Person shall not be entitled to indemnification hereunder against Claims and Expenses that are finally determined by a court of competent jurisdiction to have resulted from such Covered Person’s Disabling Conduct; provided, further, that indemnification hereunder and the advancement of expenses under Section 8.4 shall be recoverable only from the assets of the Company and its subsidiaries or proceeds of insurance, if any, and not from assets of the Members. The Company shall cause its material subsidiaries (as reasonably determined by the Board) to execute a joinder agreeing to assume responsibility for their respective obligations pursuant to this Section 8.4 and Section 8.5. | 49Indemnifications
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This Agreement shall not be assigned, in whole or in part, by operation of law or otherwise without the prior written consent of the Parties; provided, however, that either Party may assign any or all of its rights and obligations hereunder to any of its Affiliates so long as such assignment does not release such Party from any liability hereunder incurred prior to such assignment. Any attempted assignment in violation of this Section 7.06 shall be void. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the Parties and their successors and permitted assigns. | 7Assignments
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This Agreement will be governed by the laws of the State of Florida without regard to conflict of laws principles thereof. Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any state or federal court located within Florida in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein. | 47Governing Laws
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Notwithstanding the termination of this Agreement in accordance with its terms, the agreements and obligations of the Parties in this Section 13 and Sections 9-10 , 12 , 14-15 and 17 shall survive such termination and shall continue in full force and effect for the benefit of the Support Parties and the Company in accordance with the terms hereof. | 85Survival
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In the event of the death of a Participant who is at least 35 years of age at the time of his death, who is vested in accordance with the provisions of Paragraph 1.26, and who dies prior to commencing payment of his vested benefit under the Plan, a surviving spouse benefit shall be payable under Section 7.2. | 72Qualifications
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At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith (“Documents”), including, without limitation, reasonable attorneys’ and consultants’ fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer. The Company’s obligation with respect to this transaction is to reimburse Buyer’ expenses shall be $3,500.00 for Buyer’s legal fees and due diligence fee. | 41Expenses
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Except as otherwise permitted by the Bankruptcy Code or pursuant to any order of the Bankruptcy Court, no Note Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive orders, or codes (including environmental laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. | 19Compliance With Laws
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The Administrative Agent shall have received (a) audited consolidated financial statements of the Company and its subsidiaries for the two fiscal years ended December 31, 2016, and (b) unaudited consolidated financial statements of the Company and its subsidiaries (subject to year-end and audit adjustments) for any interim quarterly periods that have ended since the most recent of such audited financial statements and at least 45 days prior to the Closing Date. | 43Financial Statements
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If any provision in this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note wilJ remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree remain in full force and effect to the extent not held invalid or unenforceable. | 79Severability
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Each Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions, and shall submit to Agent inventory and reconciliation reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Each Borrower shall conduct periodic cycle counts consistent with historical practices, and shall provide to Agent a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as Agent may request. Agent may participate in and observe each physical count. | 73Records
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As a condition to exercising the Stock Option, in whole or in part, Participant will pay to the Company, or, to the extent approved by the Committee, make provisions satisfactory to the Company for payment of any federal, state or local tax in respect of the exercise or the transfer of the Shares pursuant to Section 15(d) of the Plan. | 86Tax Withholdings
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Any notice required or permitted to be given by this Agreement shall be effective only if in writing, delivered personally or by courier or by facsimile transmission or sent by express, registered or certified mail, postage prepaid, to the parties at the addresses hereinafter set forth, or at such other places that either party may designate by notice to the other. | 65Notices
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Debtor has no knowledge of any pending investigation of Debtor, Enova or Seller by any taxing authority or any pending but unassessed tax liability. | 87Taxes
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The “Costs” of Tenant’s Work are all hard and soft costs related to Tenant’s Work including but not limited to architectural plans, permits, and construction costs. Costs shall include a construction oversight fee of 2% of the hard construction costs of Tenant’s Work, to be deducted from the Allowance and paid to Landlord’s agent; Tenant shall not be required to pay Landlord any other sums in connection with Tenant’s Work, including without limitation, as set forth in Article 9(F) of the Lease. Tenant shall pay all Costs as and when due. | 25Costs
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Your employment hereunder will terminate upon your "Disability". For purposes of this Agreement, Disability has the same meaning as provided in the long-term disability plan or policy maintained or, if applicable, most recently maintained, by Tyson. If no long-term disability plan or policy was ever maintained on behalf of you or, if the determination of Disability relates to an incentive stock option, Disability means that condition described in Section 22(e)(3) of the Internal Revenue Code (the "Code"), as amended from time to time. In the event of a dispute, the determination of Disability will be made by the Committee (as defined in Tyson's equity incentive plan) and will be supported by advice of a physician competent in the area to which such Disability relates. | 30Disability
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Enter into any transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than (i) transactions among U.S. Loan Parties, (ii) transactions among Canadian Loan Parties, (iii) transactions among Subsidiaries that are not Loan Parties, (iv) transactions among U.S. Loan Parties and any other Affiliate so long as such transaction is on terms no less favorable to any such U.S. Loan Party than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Group Member, (v) transactions among Canadian Loan Parties and any other Affiliate (other than a U.S. Loan Party) so long as such transaction is on terms no less favorable to any such Canadian Loan Party than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Group Member and (vi) transactions among Group Members consistent with past practices and made in the ordinary course of business), unless such transaction is (a) permitted by this Agreement or the other Loan Documents and (b) upon fair and reasonable terms materially no less favorable to such Group Member than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Group Member; provided that the foregoing restriction in clause (b) shall not apply to: (i) transactions set forth on Schedule 7.10, (ii) issuances by Holdings of awards or grants of equity securities, employment and severance agreements, stock options and stock ownership plans approved by the board of directors, board of managers or similar governing body, as applicable, of any Group Member, (iii) the payment of directors’ fees and reimbursement of actual out-of-pocket expenses and indemnities incurred by Persons in their capacities as directors and in connection with attending board of director meetings not to exceed in the aggregate, with respect to all such items, $250,000 in any fiscal year of Holdings, (iv) Restricted Payments permitted by Section 7.6, (v) Investments permitted by Section 7.8(d), (vi) the payment of Transaction Expenses, (vii) transactions between or among the Group Members necessary to consummate the Permitted Reorganization and the Permitted Acquisition Dispositions and (viii) the issuance by the U.S. Borrower of Capital Stock to Holdings. | 91Transactions With Affiliates
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All corporate, partnership, limited liability company or similar action, as applicable on the part of the Note Holder, necessary for the authorization, execution, delivery and performance of this Agreement, the Note Conversion, the Warrant Amendment and the performance of all of the Note Holder’s obligations hereunder have been taken or will be taken prior to the Effective Date. This Agreement has been duly executed by the Note Holder and constitutes a valid and legally binding obligation of the Note Holder, enforceable against the Note Holder in accordance with its terms, subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. | 10Authorizations
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This Agreement is governed by and will be construed in accordance with the Laws of the State of New York (without regard to any conflict of Law provision that would result in the application of the Laws of another jurisdiction). | 4Applicable Laws
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This Agreement constitutes the entire agreement between the parties and supersedes the Prior Employment Agreement and the Change in Control Agreement and all other prior agreements and understandings between the parties with respect to the subject matter hereof; provided , that this Agreement shall not affect or reduce any benefit to which Executive shall be otherwise entitled under the Company’s 2010 Stock Incentive Plan, as amended, or any other plan, agreement or policy of or with the Company. No modification of or amendment to this Agreement, nor any waiver of any rights under this agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will to affect the validity or scope of this Agreement. | 38Entire Agreements
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Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter, as part of such transaction, rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a “ Sale and Lease-Back Transaction ”); provided , that a Sale and Lease-Back Transaction shall be permitted (a) with respect to (i) Excluded Property, (ii) property owned by the Borrower or any Subsidiary Loan Party that is acquired after the Closing Date so long as such Sale and Lease-Back Transaction is consummated within 180 days of the acquisition of such property or (iii) property owned by any Subsidiary that is not a Loan Party regardless of when such property was acquired, and (b) with respect to any other property owned by the Borrower or any Subsidiary Loan Party, (x) if at the time the lease in connection therewith is entered into, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) with respect to any such Sale and Lease-Back Transaction pursuant to this clause (b) with aggregate Net Proceeds in excess of $5,000,000, the Borrower or the applicable Subsidiary Loan Party shall receive at least fair market value (as determined in good faith by the Borrower) or, if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (z) the Net Proceeds therefrom are used to prepay the Term Loans to the extent required by Section 2.11(b). | 77Sales
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This Amendment may be executed by the parties hereto in one or more counterparts (including by facsimile transmission or in portable document format (PDF)), each of which shall be deemed an original and all of which when taken together shall constitute one and the same agreement. | 26Counterparts
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Anti-Corruption Laws . Neither the Parent nor any Subsidiary shall fail to conduct its businesses in compliance with applicable Anti-Corruption Laws or Anti-Money Laundering Laws in all material respects. | 3Anti-Corruption Laws
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The Company agrees, to the extent permitted by applicable law and the Company’s Certificate of Incorporation and Bylaws, to defend, indemnify, and hold harmless Executive against any and all loss, damage, liability, and expense, including, without limitation, reasonable attorneys’ fees, disbursements, court costs, and any amounts paid in settlement and the costs and expenses of enforcing this Section 28, which may be suffered or incurred by Executive in connection with the provision of Executive’s services hereunder, including, without limitation, any claims, litigations, disputes, actions, investigations, or other matters; provided that such loss, damage, liability, or expense (i) arises out of or in connection with the performance by Executive of Executive’s obligations under this Agreement and (ii) is not the result of any material breach by Executive of Executive’s obligations hereunder; and provided , further , that Company shall be under no obligation to defend, indemnify, or hold harmless Executive if Executive has acted with gross negligence or willful misconduct. In addition to the foregoing, the Company agrees to provide Executive with coverage under a directors’ and officers’ insurance policy to the same extent as the Company currently provides its executive officers generally. | 49Indemnifications
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This Agreement shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction. | 47Governing Laws
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Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including ERISA, FCPA, OFAC, the Proceeds of Crime Act and the PATRIOT Act), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; provided that this Section 5.06 will not apply to laws related to Taxes, which are the subject of Section 5.03. The Borrower will maintain in effect and enforce policies and procedures designed to reasonably ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions in all material respects. | 19Compliance With Laws
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The Company shall, by 9:30 a.m. (New York City time) on the second Trading Day following each Closing Date, file a Current Report on Form 8-K including the Transaction Documents as exhibits thereto with the Commission (“ Fo rm 8-K ”). A copy of the Form 8- K is annexed hereto as Exhibit C . Such Exhibit C will be identical to the Form 8-K which will be filed with the Commission except for the omission of signatures thereto by the Company and auditors providing the financial statements. From and after the filing of the Form 8-K, 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. The Company and the Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any 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 the 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 any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market unless the name of the Purchaser is already included in the body of the Transaction Documents, without the prior written consent of the Purchaser, except: (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission 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
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This Letter Agreement may not be amended or otherwise modified without the prior written consent of CF Corp and Sponsor. Any such amendment shall be subject to the Company’s written consent to the extent required under the Merger Agreement. This Letter Agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between Sponsor or any of its Affiliates, on the one hand, and CF Corp or any of its Affiliates, on the other, with respect to the transactions contemplated hereby (other than the Merger Agreement, the Blackstone Information Letter Agreement, the Equity Commitment Letter between CF Corp and GSO Fund, the Equity Commitment Letter among Sponsor, Fidelity National Financial, Inc. and CF Corp, the Forward Purchase Agreement among CF Corp, CFS Holdings (Cayman), L.P. and CF Capital Growth, LLC, the Voting Agreement, dated as of the date hereof, among the Company, CFS Holdings (Cayman), L.P. and the other shareholders party thereto (the “ Voting Agreement ”) and the other agreements expressly referred to herein or therein as being entered into in connection with the Merger Agreement). | 38Entire Agreements
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The Company will reduce the amount payable, if any, pursuant to this Award by all applicable withholding, including federal, state, local and foreign tax withholding as well as any other deductions applicable to payments pursuant to this Award. | 99Withholdings
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The Borrower has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. | 10Authorizations
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The term of this Agreement (the “ Term ”) shall begin on the Effective Date and shall continue until the earlier of (a) the tenth anniversary of the Effective Date or (b) dissolution of Carbon Appalachian Company, LLC, a Delaware limited liability company and parent of Carbon TN Mining Co; provided , however , that this Agreement shall earlier terminate (x) upon the mutual consent of the parties hereto or (y) after (i) twenty (20) Carry Wells have been drilled, whether completed Through the Tanks or plugged and abandoned, (ii) Carbon TN Mining Co has paid (A) an aggregate amount of Carry Costs equal to the Aggregate Carry Cap or (B) the Shortfall Carry Payment Amount or (iii) if the fourth Initial Carry Well has been approved pursuant to Section 2.2(b) and Carbon TN Mining Co has become required to effect a Partial Reassignment pursuant to Section 2.4(d), upon such Partial Reassignment; provided further , however , that any outstanding assignment obligations of either party pursuant to this Agreement shall survive any such termination. | 89Terms
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All capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Agreement. | 29Definitions
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The Committee shall have the sole and complete authority to interpret the provisions of, and decide all disputes arising under, the Plan, which interpretations and decisions shall be final and binding on all parties having any interests arising under or by virtue of the Plan. | 55Interpretations
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The Employment Period shall begin on the Effective Date and will end on the one-year anniversary thereof (the “ Expiration Date ”), unless sooner terminated as provided below or extended as provided below. Unless the Employment Period has been terminated in accordance with the following sentence of this Section 4 or one party has given at least 60 days’ advance, written notice that you or the Company seek to terminate the employment arrangement on the Expiration Date, the Expiration Date shall automatically be extended by one additional year. Notwithstanding the foregoing, the Employment Period (i) will terminate automatically upon your death, (ii) may be terminated by the Company upon Notice of Termination (as defined in Section 5(f) below) delivered to you as a result of your Disability (as defined in Section 5(h) below), (iii) may be terminated by the Company at any time for Cause (as defined in Section 5(g) below) or without Cause and (iv) may be terminated by you with or without Good Reason (as defined in Section 5(i) below) upon written notice. | 88Terminations
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This Agreement shall come into effect as of the Effective Date and shall remain in effect during the Term. For the avoidance of doubt, after the expiry of the Royalty Term with respect to a given Licensed Product in a given country, the licenses granted by Amgen to Novartis pursuant to this Agreement with respect to such Licensed Product and Licensed Amgen Trademarks for such Licensed Product in such country shall become fully paid up, and royalty free and Novartis shall no longer have any obligations pursuant to this Agreement with respect to such Licensed Product other than as set forth in Section 15.4 (Additional Surviving Provisions). | 89Terms
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This Agreement, including Attachment A which is incorporated by reference, constitutes the entire agreement between the Parties concerning the subject matter of this Agreement. This Agreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Parties relating to the subject matter of this Agreement. | 38Entire Agreements
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The Administrative Agent shall have received a solvency certificate from a Financial Officer. | 80Solvency
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The representations and warranties of the parties contained in this Agreement shall survive for twelve (12) months following the Closing, except that ( i ) the representations and warranties of the Company contained in Sections 2.1(a) , 2.2(b) , 2.2(c) , 2.3(a) and Section 2.4 will survive until the expiration of the applicable statutes of limitation and ( ii ) the representations and warranties of the Company contained in Section 2.2(a) will survive indefinitely. The covenants or other agreements of the parties that contemplate performance or fulfillment thereof prior to the Closing shall survive for six (6) months following the Closing. The covenants or other agreements of the parties that contemplate performance or fulfillment thereof at or following the Closing shall survive the Closing until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance. | 85Survival
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Employee shall be entitled to vacations, holidays and other perquisites and fringe benefits that are enjoyed by similarly situated personnel, provided that Employee will be entitled to the foregoing at a level commensurate with an executive in Employee’s position who has been employed by Employer for ten years; provided that such benefits shall in no event be less favorable than those enjoyed by Employee as Chief Executive Officer of Bats immediately prior to the execution of the Merger Agreement and set forth in the Bats Agreement. For the avoidance of doubt, Employee shall not be entitled to participate in the Chicago Board Options Exchange, Incorporated Executive Retirement Plan or any other benefit plan, perquisite or fringe benefit that has been frozen to new participants as of the Effective Date. | 93Vacations
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During the Term, and except as otherwise provided in this Agreement, Executive shall be eligible to participate in all welfare, perquisite, fringe benefit, insurance, retirement and other benefit plans, practices, policies and programs, maintained by the Company and its affiliates applicable to senior executives of the Company generally, in each case as amended from time to time. Without limiting the foregoing, during the Term, the Company shall annually reimburse Executive for up to $15,000 for financial planning services upon receipt for payment accompanied by supporting documentation reasonably satisfactory to the Company and for the annual membership fees and other dues associated with one business club. In addition, the Company shall pay the cost of an annual “senior executive” physical examination. | 12Benefits
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The Restricted Stock Units subject to this Award shall vest [INSERT VESTING CRITERIA] (each such date being a “ Vesting Date ”), subject to the Participant’s continuous Service through the applicable Vesting Date, until all Restricted Stock Units subject to this Award are vested in full. In no event shall any Restricted Stock Units vest after the Participant’s termination of Service. Notwithstanding the foregoing, the Restricted Stock Units shall be subject to the provisions contained in Sections 5(b) and 5(c) hereof [AS APPLICABLE: and in Addendum A , which is attached to this Agreement [AS APPLICABLE AND FOR PARTICIPANTS OTHER THAN MEMBERS OF THE GROUP MANAGEMENT TEAM ONLY: , and to the terms and conditions of any change of control severance agreement between the Company or Employer (as defined in Section 6) and the Participant (a “ COC Severance Agreement ”)]]. | 95Vesting
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By executing and delivering this Assignment, the Assignee (a) acknowledges that the Borrowers may have trade secrets and have financial and other data and information the confidentiality of which is material to their business and (b) without limiting the generality of the assumptions and other agreements set forth in Section 3 the Assignee agrees to keep confidential any such data and information as provided in Section 15.11 of the Credit Agreement. | 20Confidentiality
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Anything in this Notice of Award to the contrary notwithstanding, upon a Change in Control (as defined in the Plan), prior to the forfeiture of the Performance Shares under paragraph 8, all of the Target Shares shall be earned and non-forfeitable as of the date of the Change in Control. | 17Change In Control
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There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or against any of their respective properties or revenues that (a) could reasonably be expected to adversely affect this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. | 58Litigations
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The Company shall reimburse Manager for the G&A Costs attributable to or allocated to the Services in accordance with Section 5.10 . | 46General
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The Consultant will execute such documents as the Company will reasonably require to evidence and confirm the transfer of rights to the Company made under this Agreement. | 45Further Assurances
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This Consent may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Consent constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Consent shall be binding upon and inure to the benefit of the parties hereto and to the other Loan Documents and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Consent by facsimile or electronic transmission shall be effective as delivery of an original executed counterpart of this Consent. | 26Counterparts
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The Term of Employment, and Executive’s employment hereunder, shall terminate upon the earliest to occur of (i) Executive’s death, (ii) a termination by reason of a Disability, (iii) a termination by the Company with or without Cause, and (iv) a termination by Executive with or without Good Reason. Except as otherwise expressly required by law (e.g., COBRA) or as specifically provided herein or in any plan or grant, all of Executive’s rights to Base Salary, Annual Bonus, employee benefits and other compensatory amounts hereunder (if any) shall cease upon the termination of Executive’s employment hereunder. | 46General
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(a) The Borrower and each of its Subsidiaries has filed or caused to be filed all Federal, state and other material tax returns that are required to be filed and has paid all material Taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other material Taxes imposed on it or any of its property by any Governmental Authority to the extent due and payable (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or its Subsidiaries, as the case may be) and (b) except for Liens for Taxes not yet delinquent, no material Tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being asserted in writing, that could give rise to a material Tax Lien for any unpaid Tax on any asset or property of the Borrower or its Subsidiaries, except to the extent that the validity thereof is being contested in good faith pursuant to appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or its Subsidiaries, as the case may be. | 87Taxes
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The Plan is intended to be an unfunded plan maintained primarily to provide deferred compensation benefits for a select group of “management or highly compensated employees” within the meaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt from Parts 2, 3 and 4 of Title I of ERISA. To the extent any provision of, or legal issue relating to, this Plan is not fully preempted by federal law, such issue or provision shall be governed by the laws of the Commonwealth of Virginia. | 47Governing Laws
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Any document, information, or action that is required to be approved by any party under this Agreement shall be approved or disapproved by written notice given no later than fifteen (15) calendar days after receipt of such document, information, or written request for approval of such action. If any party fails to give its written approval or disapproval of any matter within the foregoing fifteen-day period, such party will be deemed to have approved such matter for all purposes. | 5Approvals
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Certificates of insurance evidencing the existence of all insurance required to be maintained by Borrower pursuant to Section 8.05(b) and the designation of Administrative Agent as the lender’s loss payees or additional named insured, as the case may be, thereunder. | 51Insurances
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Immediately after the consummation of each of the Transactions to occur on the Agreement Date, after taking into account all applicable rights of indemnity and contribution, (a) the sum of the debt (including contingent liabilities) of the Borrower and its Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and its Subsidiaries, on a consolidated basis, (b) the capital of the Borrower and its Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof, (c) the Borrower and its Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they will incur, debts including current obligations, beyond their ability to pay such debts as they become due (whether at maturity or otherwise) and (d) the Borrower and its Subsidiaries, on a consolidated basis, are “solvent” within the meaning given to that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this Section 5.14, the amount of any contingent liability at any time shall be computed as the amount that, in the light of all of the facts and circumstances existing at such time, represents the amount that would reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual pursuant to Financial Accounting Standards Board Statement No. 5). | 80Solvency
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This Agreement, any Note and any other Loan Document or other agreement, document or instrument attached hereto or executed on or as of the Effective Date integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral representations and negotiations and prior writings with respect to the subject matter hereof. | 38Entire Agreements
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Subject to Section 3 below, during the Participant’s Employment, the Award, unless earlier terminated, shall become vested as to one-third (1/3rd) of the total number of shares of Stock subject to the Award on each of the first, second and third anniversaries of the Grant Date, with the number of shares of Stock that vest on any such date being rounded down to the nearest whole share and the Award becoming fully vested on the third anniversary of the Grant Date. Notwithstanding the foregoing, shares of Stock subject to the Award shall not vest on any vesting date unless the Participant has remained in continuous Employment through the applicable vesting date. Except as provided in the first paragraph of Section 3 below, if the Participant’s Employment ceases for any reason, the Award, to the extent not already vested, will be automatically and immediately forfeited. | 95Vesting
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Except as otherwise provided in the terms of the Restricted Units or Phantom Units Award Agreement, upon termination of a Participant’s employment with or services to the Company and/or its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding, unvested Restricted Units and Phantom Units awarded the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Restricted Units and/or Phantom Units; provided that the waiver contemplated under this Section 6(c)(ii) shall be effective only to the extent that such waiver will not cause the Participant’s Restricted Units and/or Phantom Units that are designed to satisfy Section 409A of the Code to fail to satisfy such Section. | 44Forfeitures
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Notwithstanding any other provision of this Section 8 , if a Force Majeure Event lasts for more than one hundred eighty (180) consecutive Days or for more than hundred eighty (180) Days in the aggregate during any twelve (12) month period, the Non-Affected Party may terminate this Agreement upon written notice to the Affected Party; provided , however , that such one hundred eighty (180) Day period, in either case, shall be extended by an additional ninety (90) Days if the Affected Party shall, prior to the expiration of such ninety (90) Day period, have submitted to the Non-Affected Party a remedial action plan that sets forth a reasonably feasible course of repairs, improvements, changes to operations, or other actions that would permit the Affected Party to perform its obligations under this Agreement as soon as reasonably practicable and such Party pursues the remedial action plan in a commercially reasonable and diligent manner. Termination of this Agreement by a Party under this Section 8 shall be without liability to such Party; provided that such termination shall not affect any rights or obligations that may have accrued prior to such termination or that expressly or by implication are intended to survive termination, whether resulting from the event giving rise to the right to terminate or otherwise. | 88Terminations
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(a) Except as otherwise specified herein or if the context may otherwise require, capitalized terms not defined in this Agreement shall have the respective meanings assigned such terms set forth in Appendix A to the Sale and Servicing Agreement, dated as of the date hereof (the “ Sale and Servicing Agreement ”), by and among the Depositor, as seller, AHFC, as servicer, RPA seller and sponsor, and Honda Auto Receivables 2017-1 Owner Trust, as issuer. | 29Definitions
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This Guarantee may be executed by one or more of the Guarantors on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. | 26Counterparts
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If the Parties fail to resolve the Dispute in mediation, and a Party desires to pursue resolution of the Dispute, the Dispute will be submitted by either Party for resolution in arbitration pursuant to the then current CPR Rules for Non-Administered Arbitration of International Disputes (“CPR Rules”) (www.cpradr.org), except where they conflict with these provisions, in which case these provisions control. CPR is designated as the Neutral Organization for all purposes. The arbitration will be conducted in English and held in New York, New York. All aspects of the arbitration will be treated as confidential. | 6Arbitration
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THIS TERMINATION AGREEMENT AND ALL MATTERS ARISING IN CONNECTION WITH THIS TERMINATION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW). | 47Governing Laws
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THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW AND FEDERAL LAWS RELATING TO NATIONAL BANKS). | 4Applicable Laws
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Each of the Term Facility Borrowers agrees to pay and reimburse the Administrative Agent for all its reasonable costs and out-of-pocket expenses incurred in connection with the preparation and delivery of this Amendment No. 5, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent. | 41Expenses
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All documents, records, data, apparatus, equipment and other physical property, whether or not pertaining to Confidential Information, which are furnished to the Executive by the Bank or are produced by the Executive in connection with the Executive ’ s employment will be and remain the sole property of the Bank . The Executive will return to the Bank all such materials and property as and when requested by the Bank . In any event, the Executive will return all such materials and property i mm ediately upon termination of the Executive ’ s employment for any reason. The Executive will not retain any such material or property or any copies thereof after such t ermination. | 73Records
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All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: (i) if to the Company, to: Bioptix, Inc., 1775 38 th Street, Boulder, CO 80301, Attn: Chief Financial Officer, facsimile: (303) 545-5551 , with a copy by fax only to (which shall not constitute notice): Company Counsel, and (ii) if to the Purchasers, to: the addresses and fax numbers indicated on the signature pages hereto, with an additional copy by fax only to (which shall not constitute notice): Grushko & Mittman, P.C., 515 Rockaway Avenue, Valley Stream, New York 11581, Attn: Edward M. Grushko, Esq., facsimile: (212) 697-3575. | 65Notices
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The Administrative Agent shall have received a certificate of an Authorized Officer in form and substance reasonably satisfactory to the Administrative Agent certifying that all governmental and third party approvals necessary in connection with this Agreement and the continuing operations of the Parent, the Borrower and its Subsidiaries have been obtained and remains in full force and effect. | 5Approvals
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To the extent that the Participant is subject to withholding of federal, state, or local income taxes and/or other taxes or social insurance contributions in connection with this Award (the “Tax-Related Items”), the Participant shall, at such time as the value of any Shares or other amounts received pursuant to this Award first becomes includable in the gross income of the Participant for such Tax-Related Items or the time that a withholding obligation arises for the Company with respect to this Award, as applicable, pay to the Company or its designee, or make arrangements satisfactory to the Board or its designee regarding payment of, any and all such Tax-Related Items required to be withheld with respect to such income. | 86Tax Withholdings
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This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (b) general principles of equity. | 10Authorizations
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Except as expressly set forth herein, all terms and conditions set forth in the Operating Agreement shall remain in full force and effect pursuant to their terms. In the event of any conflict between the terms of this First Amendment and the terms of the Operating Agreement, the terms of this First Amendment shall prevail. | 85Survival
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None of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, control person, member or partner, in each case in excess of $50,000 other than for: (i) payment of salary for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company or any Subsidiary, and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company. | 91Transactions With Affiliates
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Reference is hereby made to the Securities Purchase Agreements and the Notes for a statement of the terms thereof. All terms used in this Guaranty, which are defined in the Securities Purchase Agreements or the Notes and not otherwise defined herein, shall have the same meanings herein as set forth therein. | 29Definitions
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(a) Generally . (i) Types of Interests . Interests in the Partnership shall be divided into: (A) a General Partnership Interest, and (B) Limited Partnership Interests (including for the avoidance of doubt, the Regular Limited Partnership Interests (including the Exchangeable Limited Partnership Interests and the Special Voting Limited Partnership Interest), the Founding Partner Interests, the REU Interests and the Working Partner Interests (which shall not constitute separate classes or groups of partnership interests within the meaning of the Act; provided that Restricted Partnership Units shall be a separate class of Working Partner Interests and shall constitute a separate class or group of partnership interests within the meaning of Section 12(g) of the Securities Exchange Act of 1934, as amended). The General Partner may determine the total number of authorized Units and Non-Participating Units. Any Units or Non-Participating Units repurchased by or otherwise transferred to the Partnership or otherwise forfeited or cancelled shall be cancelled and thereafter deemed to be authorized but unissued, and may be subsequently issued as Units or Non-Participating Units for all purposes hereunder in accordance with this Agreement. | 54Interests
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No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and such officer as may be specifically designated by the Board. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Delaware. The Company and you agree that the jurisdiction and venue for any disputes arising under, or any action brought to enforce, or otherwise relating to, this Agreement shall be exclusively in the courts in the State of North Carolina, Mecklenburg County, including the Federal Courts located therein or responsible therefor (should Federal jurisdiction exist), and the Company and you hereby submit and consent to said jurisdiction and venue. | 59Miscellaneous
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The invalidity or unenforceability of any term or provision hereof in any circumstances shall not affect the validity or enforceability of any other term or provision hereof or of such term or provision in other circumstances. In the event any provision of this Agreement is found for any reason to be invalid or unenforceable, any court of competent jurisdiction is hereby authorized to reform this Agreement by replacing such invalid or unenforceable provision with a valid and enforceable provision that, to the fullest extent possible, achieves the purposes of the provision found to be invalid or unenforceable. Without limiting the generality of the foregoing, if at any time any provision of Sections 6-10 shall be found to be invalid or unenforceable by reason of being vague or unreasonable as to duration, geographic scope, or scope of activities restricted, or for any other reason, any court of competent jurisdiction is hereby authorized to reform this Agreement by deleting such invalid or unenforceable provision and/or replacing such invalid or unenforceable provision with a valid and enforceable provision that applies to the maximum possible duration, geographic scope, and scope of activities. | 79Severability
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The Contract, as amended by this First Amendment, constitutes the entire agreement of the parties with respect to the subject matter thereof and fully supersedes any and all prior or contemporaneous written or oral agreements and understandings between the parties pertaining to such subject matter. | 38Entire Agreements
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The Company shall use the net proceeds from the sale of the Securities hereunder only for working capital and general corporate 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, Preferred Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations. | 92Use Of Proceeds
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This Retirement Plan, which constitutes an agreement between the Executive and the Company, may be executed by either of the parties hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. | 26Counterparts
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Schedule 3(q) hereto sets forth the following information with respect to each insurance policy to which Target has been a party, a named insured, or otherwise the beneficiary of coverage at any time within the past 6 years: (i) the name, address and telephone number of the agent, (ii) the name of the insurer, the name of the policyholder, and the name of each covered insured, (iii) the policy number and the period of coverage, (iv) the scope (including an indication of whether the coverage is or was on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage, and (v) a description of any retroactive premium adjustments or other loss-sharing arrangements. With respect to each such insurance policy, (i) the policy is legal, valid, binding, enforceable, and in full force and effect, (ii) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by this Agreement, (iii) neither Target nor any other party to the policy is in breach or default, and no event has occurred that, with notice or lapse of time, would constitute such breach or default, or permit termination, modification, or acceleration, under the policy, and (iv) no party to the policy has repudiated any provision thereof. Target is, and has been throughout the past 6 years, covered by the insurance policies identified in Schedule 3(q). Schedule 3(q) hereto describes all self-insurance arrangements affecting Target. | 51Insurances
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