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Any legal action or proceeding with respect to this Agreement shall be brought in the courts of the State of New Jersey or of the United States of America for the District of New Jersey. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably consents to the service of process of any of the aforesaid courts in any such action or proceeding by mailing copies thereof by certified mail, postage prepaid, to the party at its address set forth in subsection (f). THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY TO ALL CLAIMS HEREUNDER. | 56Jurisdictions
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Section 7 (Cooperation), Section 8 (Confidentiality; Non-Solicitation), Section 9 (Non-Disparagement), Section 10 (Protected Rights), and Section 12 (Independent Contractor) hereof shall survive any termination of this Agreement and shall continue in effect. | 85Survival
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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 the Executive, the Corporation and the Employer. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement or representation, oral or otherwise, express or implied, with respect to the subject matter hereof has been made by any party which is not expressly set forth in this Agreement. | 59Miscellaneous
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Except as (and to the extent) set forth on Schedule 8.09 , (a) each of the Credit Parties and each of their respective Subsidiaries has timely filed or caused to be timely filed with the appropriate taxing authority all federal and other material returns, statements, forms and reports for taxes (the “ Returns ”) required to be filed by, or with respect to the income, properties or operations of, any Credit Party and/or any of their respective Subsidiaries, (b) the Returns accurately reflect in all material respects all liability for taxes of the Credit Parties and their respective Subsidiaries, as applicable, for the periods covered thereby, (c) each of the Credit Parties and each of their respective Subsidiaries has paid or caused to be paid all taxes and assessments payable by it which have become due, other than those that are immaterial or those that are being contested in good faith and adequately disclosed and fully provided for on the financial statements of the Company in accordance with GAAP, and (d) there is no material action, suit, proceeding, investigation, audit or claim now pending or threatened in writing by any taxing authority regarding any material taxes relating to any Credit Party or any of their respective Subsidiaries. As of the Amendment No. 1 Effective Date, no Credit Party nor any of their respective Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of any Credit Party or any of their respective Subsidiaries. | 68Payments
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The agreements in this Section shall survive the resignation of the Administrative Agent, the L/C Issuer, the Swing Line Lender, the Alternative Currency Fronting Lender, the replacement of any Lender, the termination of the Aggregate Revolving Commitments and the repayment, satisfaction or discharge of all the other Obligations. | 85Survival
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Each Borrower will, and will cause each of its Subsidiaries to, comply with all applicable Laws, except to the extent failure to so comply could not, individually or in the aggregate for all such failures, reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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The SEC Reports include a true and complete list of each of the Subsidiaries and their respective jurisdictions of organization. Except as set forth on Schedule 3.2 , the Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. Except as set forth on Schedule 3.2 , neither the Company nor any Subsidiary is a participant in any joint venture, partnership or similar arrangement, except for the Company’s arrangement with DBD Credit Funding, LLC, as described in the SEC Reports. | 83Subsidiaries
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This Agreement, including Exhibit A, constitutes the full and entire understanding and agreement of the parties with regard to the subjects hereof and supersedes in its entirety all other or prior or contemporaneous agreements, whether oral or written, with respect thereto. | 38Entire Agreements
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This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before February 14, 2017; provided , however , that such termination will not affect the right of any party to sue for any breach by any other party (or parties). | 88Terminations
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During the Term, the Bank agrees to pay the Employee a base salary (the “ Base Salary ”) as follows: (i) for the period beginning on the Effective Date and continuing through December 31, 2017, the Base Salary shall be $475,000 per year, and (ii) for the period beginning on January 1, 2018 through the end of the Term, the Base Salary shall be $188,000, in each case payable in accordance with Bank’s normal payroll practices with such payroll deductions and withholdings as are required by law. During the term of this Agreement, it is agreed that Bank/Corporation may not reduce Employee’s base salary in any calendar year unless such reduction is part of a general reduction in compensation among employees of the same or similar category. | 11Base Salary
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Mortgagee may institute an action for specific performance of any covenant contained herein or in aid of the execution of any power herein granted. | 81Specific Performance
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All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, any placement agents or any of their Affiliates (with respect to the Loan and any Securitization of the Loan only) shall be subject to the prior written approval of Lender and any placement agents in their sole discretion. Subject to prior consent of Borrower, Lender shall have the right to publicly describe the Loan in general terms advertising and public communications of all kinds, including press releases, direct mail, newspapers, magazines, journals, e-mail, or internet advertising or communications. Details such as the addresses of the Properties, the amount of the Loan, the date of the closing and descriptions of the size/locations of the Properties shall only be included subject to Borrower’s approval in advance. Notwithstanding the foregoing, Borrower’s approval shall not be required for the publication by Lender of notice of the Loan and any Securitization of the Loan by means of a customary tombstone advertisement, which, for the avoidance of doubt, may include the amount of the Loan, the amount of securities sold, the number of Properties as of the Closing Date, the settlement date and the parties involved in the transactions contemplated hereby and any Securitization. | 71Publicity
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This Agreement and Release supersedes the Severance Agreement and the Original Agreement (except for paragraphs 4 and 5 of the Severance Agreement which shall remain in full force and effect), contains the entire agreement between the parties, and may be modified only in a writing executed in the same manner as the original Agreement and Release; and no agreements, representations, or statements of any party not contained herein shall be binding on such party. | 38Entire Agreements
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Each party's obligations under this Section 12.04 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Credit Party, the termination of the Commitments and the repayment, satisfaction or discharge of all the Obligations and the Collection Agent's obligations hereunder. | 85Survival
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The Company hereby represents and warrants to the Holder that the Company’s representations and warranties as set forth in Section 3.1 and as set forth in covenants listed in Article IV of the Securities Purchase Agreement, dated as of [ ] (the “ Purchase Agreement ”), together with any updates in the Company’s SEC Reports subsequent to the Purchase Agreement, are true and correct as of the date hereof and have been fully performed as of the date hereof. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement. | 98Warranties
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Each of the Loan Parties represents and warrants to the Administrative Agent and the Lenders that, by its execution and delivery hereof to the Administrative Agent, after giving effect to this Amendment: (i) the representations and warranties of the Loan Parties contained in Article 6 of the Credit Agreement shall be true and correct on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein); (ii) the Loan Parties shall have performed and complied with all covenants and conditions of the Credit Agreement and this Amendment; (iii) no Event of Default or Potential Default under the Credit Agreement shall have occurred and be continuing or shall exist, (iv) since the Closing Date of the Credit Agreement no event has occurred which would have a Material Adverse Effect, and (v) there are no actions, suits, investigations, litigation or governmental proceedings pending or, to the Loans Parties' knowledge, threatened against any of the Loan Parties that could reasonably be expected to have a Material Adverse Effect. | 76Representations
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Section headings contained in this Escrow Agreement have been inserted for convenience of reference only and shall not affect in any way the meaning or interpretation of this Escrow Agreement. | 48Headings
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The Company shall file a Current Report on Form 8-K, including a copy of this Note as an exhibit thereto, with the SEC within the time required by the 1934 Act. From and after the filing of such Form 8-K, the Company represents to the Holder that it shall have publicly disclosed all material, non-public information delivered to the Holder by the Company, or any of its officers, directors, employees, or agents in connection with the transactions contemplated by this Note. The Company and the Holder shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor the Holder 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 the Holder, or without the prior consent of the Holder, with respect to any press release of the Company, none of which consents shall be unreasonably withheld, delayed, denied, or conditioned 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 the Holder, or include the name of the Holder in any filing with the SEC or any regulatory agency or Principal Market, without the prior written consent of the Holder, except in the aforementioned Form 8-K or as referenced in exhibit lists and financial statements, to the extent such disclosure is required by the SEC or the Company’s auditors in filings required under the 1934 Act, the 1933 Act, by Principal Market regulations, or otherwise required by law. | 71Publicity
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Both Landlord and Tenant have been represented by counsel and this Master Lease has been freely and fairly negotiated. Consequently, all provisions of this Master Lease shall be interpreted according to their fair meaning and shall not be strictly construed against any Party. | 55Interpretations
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This Agreement and the Registration Rights Agreement supersede all other prior oral or written agreements between the Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement, the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. Each of the Company and the Buyer acknowledge and agree that it has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly set forth in this Agreement. | 38Entire Agreements
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The Employer may at any time amend, suspend or reinstate any or all of the provisions of the Plan, except that no such amendment. suspension or reinstatement may adversely affect the Eligible Employee’s benefit under the Plan as it existed as of the day before the effective date of such amendment, suspension or reinstatement, without the Eligible Employee’s prior written consent. Written notice of any amendment or other action with respect to the Plan shall be given to the Eligible Employee. | 2Amendments
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The Parties hereby acknowledge and agree that this agreement may not be assigned, in whole or in part, by any Party without the prior written consent of all other Parties. | 7Assignments
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LICENSEE may assign its license under this Agreement, license or sub-license any of the Licensed Materials and Intellectual Property, or any other rights granted under this Agreement, while this Agreement is in effect. LICENSOR shall be consulted 30 days prior to any assignment or sub-license any of the Licensed Materials and Intellectual Property, or any other rights granted under this Agreement and shall have the right to approve or deny any assignment or sub-license, while this Agreement is in effect and consent shall not be unreasonably withheld. | 7Assignments
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Seller is in compliance with all laws applicable to the Business, except where the failure to be in compliance would not have a material adverse effect on the Purchased Assets or the Business. Seller has not received any unresolved written notice of or been charged with the violation of any laws applicable to the Business except where such charge has been resolved. There are no pending or, to the knowledge of the Seller, threatened actions or proceedings by any Governmental Authority, which would prohibit or materially impede the Business. | 19Compliance With Laws
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This Agreement may be terminated by any Holder, as to the Holder’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Holder, by written notice to the other parties, if the Closing has not been consummated on or before May __, 2017; provided , however , that such termination will not affect the right of any party to sue for any breach by the other party (or parties). | 88Terminations
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(a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender (a “ Benefitted Lender ”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided , however , that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. | 0Adjustments
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The Administrative Agent shall have received a Notice of Borrowing, Letter of Credit Application, or Notice of Conversion/Continuation, as applicable, from the Borrower in accordance with Section 2.3(a) , Section 3.2 , Section 4.2 , or Section 5.2 , as applicable. | 65Notices
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Except as otherwise expressly provided herein (including Section 2.02(c)(viii), Section 4.08, Section 5.04 and Section 5.05), each party hereto shall bear its own costs and expenses (including attorneys’ fees) incurred in connection with this Agreement and the Transactions. | 41Expenses
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EACH OF THE PARTIES HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF FLORIDA AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE ACQUISITION OR THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS , AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE ACQUISITION OR THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. | 21Consent To Jurisdiction
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The Parties agree that this Agreement is the product of negotiations between sophisticated parties, both of whom were represented by counsel, and each of whom had an opportunity to participate in and did participate in, the drafting of each provision hereof. Accordingly, this Agreement shall be construed as if both parties prepared this Agreement, and any rules of construction to the contrary are hereby waived. | 23Construction
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Any amounts payable to Aron under this Section 14 or otherwise under this Agreement if not paid upon demand shall bear interest from the date of such demand until paid in full, at the rate of interest set forth in Section 10.6 of the S&O Agreement. | 54Interests
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The failure of a Party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a Party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty. | 97Waivers
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Except for the representations and warranties set forth in Article III and this Article IV and any Transaction Document, neither the Company nor any other Person makes any express or implied representation or warranty with respect to the Company, JV, Newco, their respective Subsidiaries or the Healthcare Portfolio. The Company hereby disclaims any other express or implied representations or warranties. Except with respect to claims of Fraud and for the representations and warranties set forth in Article III and this Article IV and any Transaction Document, the Company hereby disclaims all liability and responsibility for any representation, warranty, opinion, projection, forecast, statement, memorandum, presentation, advice or information made, communicated or furnished (orally or in writing) to Buyer or its Affiliates or Representatives (including any such opinion, projection, forecast, statement, memorandum, presentation, advice or information made available in any electronic data room hosted by the Seller Group in connection with the Transactions). | 98Warranties
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This Agreement and any certificate attached hereto or delivered in accordance with the terms hereof by or on behalf of OCLL in connection with the transactions contemplated by this Agreement, when taken together, do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein and/or therein not misleading. | 31Disclosures
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The institution of any litigation, arbitration proceeding or governmental proceeding on the Borrower, the Servicer, the Performance Guarantor, the Transferor, or any Originator, which with respect to any Person other than the Borrower, could reasonably be expected to have a Material Adverse Effect. | 58Litigations
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All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given and received (a) when delivered by hand and receipted for by the party addressee, (b) when delivered by nationally recognized courier service, or (c) on the fifth day after being mailed by certified or registered mail with postage prepaid, return receipt requested, and in each of the foregoing cases, addressed to intended party at the address of such party shown on the signature page of this Agreement. Either party may change such party’s address for the giving of notices, requests, demands and other communications, or the person to whose attention such notices, requests, demands and other communications are to be given, by giving notice of such change to the other party in accordance with this Section. | 65Notices
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Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 22. | 96Waiver Of Jury Trials
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Notices to be given hereunder shall be in writing and shall be deemed to have been sufficiently given if delivered personally or sent by overnight delivery service or by facsimile transmission. Notice shall be deemed to have been received on the date of personal delivery or facsimile transmission, or if sent by overnight delivery service, shall be deemed to have been received on the next delivery day after deposit with the courier or messenger. The addresses of the Parties are set forth on the signature page of this Note and a Party shall give written notice of any change of address to the other Party. | 65Notices
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This Agreement sets forth the final and entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by the Company and Executive, or any representative of the Company or Executive, with respect to the subject matter hereof. | 38Entire Agreements
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This Agreement shall extend to and be binding upon and inure to the benefit to the parties hereto, their respective heirs, representatives, successors and assigns. This Agreement may not be assigned by the Executive, but may be assigned by the Corporation to any person or entity that succeeds to the ownership or operation of the business in which the Executive is primarily employed by the Corporation. | 13Binding Effects
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Title and risk of loss to Products shall pass from the Company to Aron as Products pass the Products Delivery Point; provided that if Products are delivered from the Refinery into a Specified Lien Location, then title and risk of loss to such Products shall remain with the Company. If Products pass directly from a Specified Lien Location to an Included Location, title and risk of loss to such Products shall pass from the Company to Aron as Products pass the Products Delivery Point of such Included Location. Aron shall retain title through the Included Product Pipelines and in the Included Third Party Product Storage Tanks. With respect to Products held in Included Locations, title and risk of loss to Products shall pass from Aron to the Company as Products pass at the Products Offtake Point, provided that title and risk of loss shall remain with Aron during Product transfers between Included Locations at which Products are held. | 90Titles
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There are no actually known legal actions, suits, arbitration or other legal or administrative proceedings or governmental investigations pending or contemplated which would prevent the enforcement of this Agreement. | 58Litigations
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Subject to the terms of Section 2.3(a), the Closing shall be held on the Closing Date not later than the Applicable Closing Deadline by mutually acceptable escrow arrangements. There shall be no requirement that Sellers and Buyer physically attend the Closing, and all funds and documents to be delivered at the Closing shall be delivered to the Escrow Agent unless the parties hereto mutually agree otherwise. Buyer and Sellers hereby authorize their respective attorneys to execute and deliver to the Escrow Agent any additional or supplementary instructions as may be necessary or convenient to implement the terms of this Agreement and facilitate the closing of the transactions contemplated hereby, provided, however, that such instructions are consistent with and merely supplement this Agreement and shall not in any way modify, amend or supersede this Agreement. | 18Closings
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The purchase and sale of the Shares shall take place at one closing (the “ Closing ”). The Closing of the transaction contemplated by this Agreement shall take place on the date hereof simultaneously with the execution and delivery of this Agreement by all parties hereto (such date, the “ Closing Date ”). Subject to the terms and conditions hereof, at the Closing, Investor shall subscribe for and purchase the Shares from the Company in consideration of (i) $1,326,087 (the “ Cash Purchase Price ”) and (ii) 500,000 shares of common stock of the Investor (the the “ Equity Purchase Price ” and together with the Cash Purchase Price, the “ Purchase Price ”), and the Company shall issue and sell such Shares to Investor for the Purchase Price. | 18Closings
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This Guaranty shall remain in full force and effect until indefeasible payment in full of the Guarantied Obligations, the cancellation of all Letters of Credit and the other Obligations and the termination or cancellation of the Credit Agreement in accordance with its terms. | 88Terminations
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Tenant shall not permit mechanic's or other liens to be placed upon the Property, Building, Premises or Tenant's leasehold interest in connection with any work or service done or purportedly done by or for the benefit of Tenant, including without limitation the Tenant Work and any Alteration. If a lien is so placed, Tenant shall, within 20 days of demand from Landlord, fully discharge the lien by settling the claim which resulted in the lien or by bonding or insuring over the lien in the manner prescribed by the applicable lien Law. If Tenant fails to discharge the lien within such 20 days, then, in addition to any other right or remedy of Landlord, Landlord may bond or insure over the lien or otherwise discharge the lien. Tenant shall, within 30 days after receipt of an invoice from Landlord, reimburse Landlord for any amount paid by Landlord, including reasonable attorneys' fees, to bond or insure over the lien or discharge the lien. | 57Liens
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The Company shall by 8:30 a.m. (New York City time) (i) on the fourth (4 th ) Business Day after this Agreement has been executed, issue a press release disclosing the material terms of the transactions contemplated hereby and (ii) within four (4) Business Days after this Agreement has been executed, file a Current Report on Form 8-K with the SEC (the “ 8-K Filing” ). From and after the issuance of such press release and the filing of the 8-K Filing, the Company shall have publicly disclosed all material, non-public information delivered to any of the Subscribers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents. The Company and each Subscriber shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and no Subscriber shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, which consent shall not unreasonably be withheld. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Subscriber, or include the name of any Subscriber in any filing with the SEC or any regulatory agency, without the prior written consent of such Subscriber, except to the extent such disclosure is required by law in which case the Company shall provide the Subscribers with prior notice of such disclosure. The Company understands that any such disclosure shall cause irreparable harm and each Subscriber shall be entitled to injunctive relief and liquidated damages in connection therewith. | 71Publicity
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The Award shall vest in equal installments over a five (5) year period, commencing on the Grant Date, at the rate of 20% effective on each of the first through fifth anniversaries of the Grant Date; provided that you have not incurred a Termination of Employment (as defined below) prior to the applicable vesting date. The date that an RSU becomes vested shall be referred to herein as the “ Vesting Date ”. | 95Vesting
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The Company agrees to indemnify and hold harmless the Purchaser and all of their shareholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “ Indemnitees ”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “ Indemnified Liabilities ”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, or (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement. | 49Indemnifications
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This Agreement may be executed in one or more counterparts and by the different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. | 26Counterparts
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IRET and you agree that, if any term of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement. | 79Severability
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The headings of subdivisions in this Agreement are for convenience of reference only, and shall not govern the interpretation of any of the provisions of this Agreement. | 48Headings
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Notwithstanding anything in this Agreement to the contrary, upon termination of employment for any reason, Employee shall be deemed to have resigned as an officer, director, manager and employee of the Company and its Related Entities and shall execute any documents and take any actions to effect the foregoing as requested by the Company. In order to be eligible to receive any payments or benefits hereunder as a result of the termination of the Employee’s employment, in addition to fulfilling all other conditions precedent to such receipt, the Employee or the Employee’s legal representative must within 21 days (or such other period as required under applicable law) after presentation of a release in form and substance reasonably satisfactory to Advance and its legal counsel, execute said release, and within 7 days (or such other period as required under applicable law) after such execution not revoke said release, on behalf of the Employee and Employee’s estate, heirs and representatives, releasing Advance, and its Related Entities and each of their respective officers, directors, employees, members, managers, agents, independent contractors, representatives, shareholders, successors and assigns (all of which persons and entities shall be third party beneficiaries of such release with full power to enforce the provisions thereof) from any and all claims related to Employee’s employment with Advance; termination of Employee’s employment; any and all injuries, losses or damages to Employee, including any claims for attorney’s fees; any and all claims relating to the conduct of any employee, servant, officer, director or agent of Advance; and any and all matters, transactions or things occurring prior to the date of said release, including any and all possible claims, known or unknown, which could have been asserted against Advance or its Related Entities or their respective employees, agents, servants, officers or directors. For clarification, unless and until the Employee executes and does not, within any applicable revocation period, revoke the release, the Company shall have no obligation to make any Termination Payment to the Employee, and, even if the Employee does not execute the release, the Employee shall be bound by the post-termination provisions of this Agreement, including without limitation Section 10. | 74Releases
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If any provision of this Guaranty Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. | 79Severability
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Except as disclosed in Schedule 3(f), since January 1, 2016, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “ SEC Documents ”). As of their respective dates (except as they have been correctly amended), 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 (except as they may have been properly amended), 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. As of their respective dates (except as they have been properly amended), 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 generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as disclosed in Schedule 3(f) or routine correspondence, such as comment letters and notices of effectiveness in connection with previously filed registration statements or periodic reports publicly available on EDGAR, to the Company’s knowledge, the Company or any of its Subsidiaries are not presently the subject of any inquiry, investigation or action by the SEC. | 43Financial Statements
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With respect to Performance Shares granted prior to July 19, 2017, in the event of a Participant’s termination due to Disability, a distribution shall be made of a pro rata share of the Performance Shares that are earned, pursuant to the Performance Target, for the full Performance Period (but only, in the case of a Qualified Performance-Based Award, to the extent the award has been certified by the Committee to have been earned), prorated based upon the full number of fiscal years completed during the Performance Period as of the Participant’s termination date. Except as otherwise provided in Section 10, such Performance Shares shall be distributed to the Participant at the same time Performance Shares are distributed to other Participants who remain employed with the Company. | 30Disability
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Trustor shall comply with all decisions, statutes, ordinances, rulings, directions, rules, regulations, orders, writs, decrees, injunctions, permits, certificates, or other requirements of any court or other governmental authority (collectively “Legal Requirement”) now or hereafter affecting the Property or any part thereof or requiring any alteration or improvement to be made thereon or thereto. Trustor shall not commit, suffer or permit any act to be done in, upon or to the Property or any part thereof in violation of any such Legal Requirement. Notwithstanding the foregoing, Trustor shall have the right to contest the imposition of any Legal Requirement affecting the Property provided that (a) such contest is made in good faith and diligently prosecuted by Trustor to completion; (b) no action for the sale of, or the foreclosure of any lien against, the Property arising from or relating to such Legal Requirement shall have been commenced, or if such action shall have been commenced, Trustor shall have provided a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of any such sale or foreclosure; and (c) such contest shall not impair the security of Beneficiary in the Property or adversely affect the operation of the Property or Trustor’s business. | 19Compliance With Laws
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The parties agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, to enforce specifically the terms and provisions of this Agreement exclusively in the Court of Chancery of the State of Delaware or, if such court shall not have jurisdiction, any state or federal court sitting in the State of Delaware, in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to another party seeking or obtaining such relief. Each of the parties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware and the federal and other state courts sitting in the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than such federal or state courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury, and (d) each of the parties irrevocably consents to service of process by a reputable overnight mail delivery service, signature requested, to the address set forth in Section 9 hereof or as otherwise provided by applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO ANY CONFLICT OR CHOICE OF LAW PRINCIPLES THAT MAY RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. | 59Miscellaneous
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This Amendment Agreement and the documents, certificates or other writings delivered to the Holders by or on behalf of the Company in connection herewith, taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. There is no fact known to the Company that would reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the other documents, certificates and other writings delivered to the Holders by or on behalf of the Company. | 31Disclosures
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THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. | 47Governing Laws
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No amendment of any provision of this Guarantee shall be effective unless it is in writing and signed by Guarantor, Beneficiary and any permitted assignee of Beneficiary’s rights hereunder, and no waiver of any provision of this Guarantee, and no consent to any departure by Guarantor therefrom, shall be effective unless it is in writing and signed by Beneficiary and any permitted assignee of Beneficiary’s rights hereunder. | 2Amendments
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The Company shall indemnify, hold harmless and reimburse the Consultant and all of its affiliates, officers, directors, employees, agents and associates (the “ Indemnified Parties ”) to the fullest extent lawful against any and all claims, losses, damages, liabilities, expenses, costs, actions, joint or several, of any nature or type whatsoever, including, without limitation, fees and expenses of counsel (“ Indemnified Expenses ”), relating to or arising from this Agreement, the Consulting Services, any other matter whatsoever relating to or involving the Consultant’s engagement by the Company or any other matter whatsoever relating to or involving Consultant’s or Indemnified Parties’ prior role with the Company and/or transactions of the Company in which the Consultant or any Indemnified Party was involved, except to the extent (and only to the extent) that a court of competent jurisdiction (after any final appeal) determines that such Indemnified Expenses arose exclusively from the Consultant’s or the Indemnified Parties’ reckless or willful misconduct.. This section will survive any termination of this Agreement. | 49Indemnifications
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Each Credit Party irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the Province of Alberta , and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court. Each of the parties hereto agrees that a final judgment in any such action 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 or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Credit Party or its properties in the courts of any jurisdiction. | 82Submission To Jurisdiction
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Borrower shall maintain its financial books, accounts and Records substantially in accordance with generally accepted accounting principles consistently applied, and Borrower will, when requested so to do, make available during regular business hours any of its financial Records for inspection by duly authorized representatives of Lender, and will furnish Lender any information regarding their financial condition within a reasonable time after written request therefor. | 73Records
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There are no actions, suits or proceedings pending or, to CHATURVEDI’s knowledge, overtly threatened against or affecting CHATURVEDI at law or in equity, or before or by any Governmental Authority, which would adversely affect CHATURVEDI’s performance under this Agreement or the consummation of the transactions contemplated hereby. | 58Litigations
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Except as otherwise determined by the Board in its discretion, the Plan shall be administered by the Committee; provided, that, the Board may, in its sole discretion, make awards under the Plan. The Committee shall consist exclusively of two or more non-employee directors within the meaning of the rules promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act who also qualify as outside directors within the meaning of Code Section 162(m) and the related regulations under the Code. The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board. | 46General
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The Company and each Guarantor shall have performed and complied with all agreements and conditions contained in this Agreement and the Guaranty required to be performed or complied with by it prior to or at the Closing and from the date of this Agreement to the Closing assuming that Sections 9 and 10 are applicable from the date of this Agreement. From the date of this Agreement until the Closing, before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing. None of the Parent Guarantor, the Company nor any of their Subsidiaries shall have entered into any transaction since March 31, 2016 that would have been prohibited by Section 10 had such Section applied since such date. | 62No Defaults
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The captions and section headings herein are included solely for convenience of reference only and shall not constitute a part hereof for any other purpose, modify or amend the terms or conditions hereof, or be used in connection with the interpretation of any term or condition hereof or be given any substantive effect. | 48Headings
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Notwithstanding anything in the Loan Documents to the contrary, each Lender party hereto hereby acknowledges, consents and agrees (x) that the Borrower may repay the Residual Loans in full in cash on or prior to the Residual Loans Maturity Date, without having to make a pro rata payment on account of the other Advances then outstanding, (y) to the amendment of Section 2.5(a) of the Term Loan Agreement as provided herein and (z) to the payment of the various fees, the Applicable Premium and Call Premium, in each case, as applicable and as contemplated by the Second Amendment. | 22Consents
|
Executive understands and agrees that in exchange for the consideration described in Section 7 of the Employment Agreement between Executive and Company, which is in addition to anything of value to which Executive is entitled to receive, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Executive and his representatives, agents, estate, heirs, successors and assigns, absolutely and unconditionally hereby release, remise, discharge, and hold harmless the Releasees (which is defined to include the Company and/or any of its parents, subsidiaries or affiliates, predecessors, successors or assigns, and its and their respective current and/or former partners, directors, shareholders/stockholders, officers, employees, employee benefit plans, insurers, attorneys and/or agents, all both individually and in their official capacities), from any and all legally waivable actions or causes of action, suits, claims, complaints, contracts, liabilities, agreements, promises, contracts, torts, debts, damages, controversies, judgments, rights and demands, whether existing or contingent, known or unknown, suspected or unsuspected, which arise out of Executive’s employment with, change in employment status with, and/or separation of employment from, the Company. This release is intended by Executive to be all-encompassing and to act as a full and total release of any legally waivable claims, whether specifically enumerated herein or not, that Executive may have or have had against the Releasees arising from conduct occurring up to and through the date of this Agreement, including, but not limited to, any legally waivable claims arising from any federal, state or local law, regulation or constitution dealing with either employment, employment benefits or employment discrimination including any claims or causes of action Executive have or may have relating to discrimination under federal, state or local statutes including, but not limited to, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974, the Americans with Disabilities Act, the Family and Medical Leave Act, the California Fair Employment and Housing Act, all as amended from time to time, and any contract, whether oral or written, express or implied; any tort; any claim for equity or other benefits; or any other statutory and/or common law claim. | 74Releases
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This Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) are not intended to confer, and shall not be construed as conferring, upon any person other than the parties hereto any rights or remedies hereunder. Except as otherwise provided in this Agreement, neither this Agreement nor any of the rights, interests, or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by Shareholder without the prior written consent of the Purchaser, and any such assignment or delegation that is not consented to shall be null and void. This Agreement, together with any rights, interests or obligations of the Purchaser hereunder, may be assigned or delegated in whole or in part by the Purchaser to any direct or indirect wholly owned subsidiary of the Purchaser; without the consent of or any action by Shareholder upon notice by the Purchaser to Shareholder as provided herein, provided , however , that the Purchaser shall remain liable for all of its obligations under this Agreement. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns (including any person to whom any Shares or New Shares are sold, transferred or assigned). All authority conferred herein shall survive the death or incapacity of Shareholder and in the event of Shareholder’s death or incapacity, any obligation of Shareholder hereunder shall be binding upon the heirs, personal representatives, successors and assigns of Shareholder. | 38Entire Agreements
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THIS AMENDMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors, successors-in-title and assigns as provided in the Credit Agreement. | 59Miscellaneous
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In the event that the Company is involved in any investigation, litigation, arbitration or administrative proceeding subsequent to the execution of this Agreement or the Company reasonably requires Plaintiff’s services as they relate to pending matters, Plaintiff agrees that, upon written request, he will provide reasonable cooperation to the Company, including but not limited to participation in interviews with the Company’s attorneys, appearing for depositions, testifying in administrative, judicial or arbitration proceedings, or any other reasonable participation necessary for the prosecution or defense of any such investigation, litigation, arbitration or administrative proceeding. Plaintiff agrees that he shall be commercially reasonable in providing such cooperation, taking into account his other obligations and the position he may have with another employer at the time such cooperation is required. He shall take such further action and execute documents as may be reasonably necessary or appropriate in order to carry out the provisions and purposes of this provision. The Company agrees to reimburse Plaintiff for his reasonable expenses in participating in the prosecution or defense of any investigation, litigation, arbitration or administrative proceeding, including any reasonable, pre-approved attorney fees he incurs in hiring independent counsel provided that such expenses are preapproved and he submits acceptable documentation of all such expenses. The Company retains the right to pre-approve expenses and if the Company declines to cover Plaintiff’s proposed and reasonable expenses, Plaintiff is not obligated to engage in the requested cooperation. If there is a dispute between the Company and Plaintiff as to the “reasonableness” of the expenses, Plaintiff will continue to cooperate for up to two weeks after making his request for expenses while the Parties attempt to negotiate reasonable expenses, provided that such cooperation does not require Plaintiff to incur the disputed expenses. If no compromise is reached within two weeks of Plaintiff’s request, the Company will decline to approve the expenses and Plaintiff is released from his duty to cooperate. Nothing in this paragraph shall be interpreted to require the Company to reimburse Plaintiff for fees or expenses incurred in the Lawsuit, prior to the execution of this Agreement, or in any litigation or proceeding in which Plaintiff is a party. | 24Cooperation
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Seller has not violated in any material respect any, and Seller is in compliance in all material respects with all, applicable laws, rules and regulations with respect to the ownership and use of the Property. | 19Compliance With Laws
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Subject to approval by the Officer Nomination and Compensation Committee of the Board, NiSource Inc. will enter into a Change in Control Agreement with you on substantially the same terms as other senior executives of the Company. | 17Change In Control
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Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party on the basis that the party was the drafter. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. | 23Construction
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At the request of Tenant and solely as an accommodation to Tenant, Landlord will enter into a direct contractual agreement with Tenant’s Contractor. Notwithstanding the foregoing, Tenant will be responsible to Landlord for all Claims arising from the acts and omissions of Tenant’s Contractor and all subcontractors, materialmen, suppliers, and other Tenant Parties in connection with any Work, and Landlord will have no liability to Tenant, Tenant’s Contractor, Tenant’s subcontractors, or any other Tenant Party in connection therewith, and Tenant agrees to indemnify, defend, and hold Landlord Parties harmless from any Claim, demand, or action asserted or suffered by any Tenant Party or third party arising in connection with the Work except to the extent arising from Landlord’s gross negligence, will misconduct or violation of its obligations under the Lease. Landlord will have no direct contractual obligation to any other subcontractor of Tenant to pay them. Landlord’s sole financial obligation with respect to the Work shall be to disburse to Tenant’s Contractor funds from the Allowance (as defined below) in accordance with this Work Letter and additional funds deposited by Tenant with Landlord to pay any Excess Costs (as defined below), all in accordance with the terms of this Work Letter. | 50Indemnity
|
If any term or provision of this Agreement, or its application to any party or set of circumstances, shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and each shall be valid and enforceable to the fullest extent permitted by law. | 79Severability
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Except for each Loan Party’s interests in certain Oil and Gas Properties, and except as set forth on Schedule 4.23, which such Loan Party represents do not constitute a material portion (with 2% or more being deemed material) of the value of the Collateral and all other Properties of such Loan Party securing the Obligations, all of the proceeds from the sale of Hydrocarbons produced from Realty Collateral are being properly and timely paid to such Loan Party by the purchasers or other remitters of production proceeds without suspense. | 41Expenses
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To the fullest extent permitted by law and the Company’s operating agreement, the Company shall promptly indemnify Executive for all amounts (including, without limitation, judgments, fines, settlement payments, losses, damages, costs and expenses (including reasonable attorneys’ fees)) incurred or paid by the Executive in connection with any action, proceeding, suit or investigation arising out of or relating to the performance by the Executive of services for (or acting as a fiduciary of any employee benefit plans, programs or arrangements of) the Company, including as a director, officer or employee of the Company. The Company also agrees to maintain a director’s and officers’ liability insurance policy covering the Executive. In addition, the Company will reimburse the Executive for the cost of a supplemental D&O insurance policy for up to Five Million Dollars ($5,000,000). The Company and the Executive shall enter into an indemnification agreement, substantially in the form attached hereto as Exhibit [D]. | 49Indemnifications
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During and after the Executive’s employment, the Executive shall cooperate fully with the Company at the Company’s expense in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company. The Executive’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executive’s employment, the Executive also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company. The Company shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection with the Executive’s performance of obligations pursuant to this Section 11. This Section 11 shall survive the termination of this Agreement for any reason. | 58Litigations
|
Any notice required by the terms of the Award Agreement shall be given in writing and shall be deemed effective upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid. Notice shall be addressed to the Company at its principal executive office and to the Grantee at the address that he or she most recently provided in writing to the Company. | 65Notices
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(a). Authority of the Representative. Any action by the Initial Purchasers hereunder may be taken by J.P. Morgan Securities LLC on behalf of the Initial Purchasers, and any such action taken by J.P. Morgan Securities LLC shall be binding upon the Initial Purchasers. | 59Miscellaneous
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The Recipient accepts the RSUs subject to all of the terms, provisions and restrictions of this Agreement and the Plan. The undersigned Recipient hereby accepts as binding, conclusive and final all decisions or interpretations of the Board or the Committee upon any questions arising under this Agreement. | 55Interpretations
|
Each Borrower and its Subsidiaries shall timely file all tax returns that are required to be filed by them and shall timely pay all material Taxes due, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. | 87Taxes
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This Agreement shall not be changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing signed by the parties hereto, or their respective successors or assignees. | 60Modifications
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Except as expressly set forth herein, the Loan Agreement shall continue in full force and effect and, as modified or amended, is hereby ratified, confirmed and approved. No provision of this Amendment N°3 may be modified or amended except expressly in a writing signed by both Parties nor shall any terms be waived except expressly in a writing signed by both Parties charged therewith. | 46General
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Except as herein expressly amended, all terms, covenants and provisions of the Agreement are and shall remain in full force and effect, and all references therein to such Agreement shall henceforth refer to the Agreement, as amended by this Amendment. This Amendment shall be deemed incorporated into, and a part of, the Agreement. | 38Entire Agreements
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No Credit Party maintains or contributes to any Pension Plan subject to Title IV of ERISA, except as set forth on Schedule 5.13 hereto or otherwise disclosed to the Bank in writing. There is no accumulated funding deficiency within the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA, or any outstanding liability with respect to any Pension Plans owed to the PBGC other than future premiums due and owing pursuant to Section 4007 of ERISA, and no “reportable event” as defined in Section 4043(c) of ERISA has occurred with respect to any Pension Plan other than an event for which the notice requirement has been waived by the PBGC. None of the Credit Parties has engaged in a prohibited transaction with respect to any Pension Plan, other than a prohibited transaction for which an exemption is available and has been obtained, which could subject such Credit Parties to a material tax or penalty imposed by Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA. Each Pension Plan is being maintained and funded in accordance with its terms and is in material compliance with the requirements of the Internal Revenue Code and ERISA. No Credit Party has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to have resulted in any Withdrawal Liability and, except as notified to the Bank in writing following the Effective Date, no such Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA) or insolvent (within the meaning of Section 4245 of ERISA). | 39Erisa
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The Parties further agree that, to the greatest permitted by applicable law, any action, suit or proceeding relating to or otherwise arising out of or in connection with the Employee's employment by SGRP or any of its subsidiaries shall be resolved by a bench trial and not a jury trial, and each Party hereby absolutely, unconditionally, irrevocably and expressly waives forever trial by jury. This waiver of jury trial and each other express waiver, release, relinquishment or similar surrender of rights (however expressed) made by a Party in this Agreement has been absolutely, unconditionally, irrevocably, knowingly and intentionally made by such Party. | 96Waiver Of Jury Trials
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No written report, financial statement, certificate or other factual information (other than financial projections, other forward-looking information and information of a general economic or industry-specific nature) furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading on the date when made. | 31Disclosures
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Borrowers shall hold their books and records relating to the Collateral segregated from all Borrowers’ other books and records in a manner satisfactory to the Bank; and shall deliver to the Bank from time to time promptly at its request all invoices, original documents of title, contracts, chattel paper, instruments and any other writings relating thereto, and other evidence of performance of contracts, or evidence of shipment or delivery of the merchandise or of the rendering of services; and Borrowers will deliver to the Bank promptly at the Bank’s request from time to time additional copies of any or all of such papers or writings, and such other information with respect to any of the Collateral and such schedules of inventory, schedules of accounts and such other writings as the Bank may in its sole discretion deem to be necessary or effectual to evidence any loan hereunder or the Bank’s security interest in the Collateral. | 73Records
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The validity and construction of this Agreement or any of its provisions shall be determined under the internal laws of the State of New York, without giving effect to its conflicts of laws provisions, and without regard to its place of execution or its place of performance. The parties irrevocably consent and agree to the exclusive jurisdiction of the applicable Federal and State courts located in the City of New York in the State of New York, and to service of process for it and on its behalf by certified mail, for resolution of all matters involving this Agreement or the transactions contemplated hereby. Each party waives all rights to a trial by jury in any suit, action or proceeding hereunder. In the event of any litigation between the parties hereto respecting or arising out of this Agreement, the prevailing party will be entitled to recover reasonable legal fees and costs, whether or not such litigation proceeds to final judgment or determination, as determined by the judge of the court or arbitrator. | 47Governing Laws
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The execution, delivery and performance of this Agreement, and the Exchange Note and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance, as applicable, of the Conversion Shares will not, (i) result in a violation of the articles of incorporation of the Company, as amended (the “ Certificate of Incorporation ”) or the bylaws of the Company (the “ Bylaws ”) or (ii) result in a violation of any law, rule, regulation, order, judgment or decree (including United States federal and state securities laws and regulations and rules or regulations of any self-regulatory organizations to which either the Company or its securities are subject) applicable to the Company or by which any property or asset of the Company is bound or affected. The Company is not in violation of its Certificate of Incorporation, Bylaws or other organizational documents. | 61No Conflicts
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In the event of (i) any bankruptcy, reorganization, insolvency, liquidation or similar event of the Company, (ii) merger, consolidation or sale of substantially all of the assets of the Company, (iii) any change of control of the voting power of the Company pursuant to a third party transaction (and not pursuant to the exercise of Company Series A Warrants or Series A Convertible Preferred Stock) or (iv) any breach of any other obligation owed to the Holder or any other Consenting Holder by the Company not cured within three days of such breach (provided that such termination shall not be effective until the earlier of the date that the Company or any other Consenting Holders notifies all other Consenting Holders or publicly discloses the existence of such default), then this Agreement shall terminate immediately. In the event of such a breach (and cure, if any), the Company shall be required to notify all other Consenting Holders within one Trading Day of such breach (and cure if applicable). The Company shall have the right to terminate this Agreement at any time the Common Stock is listed or quoted on the OTCQX or the OTCQB. | 88Terminations
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Executive shall perform and discharge well and faithfully such management and administrative duties as an executive officer of Penns Woods and JSSB as may be assigned to him from time to time by the President and Chief Executive Officer of Penns Woods and JSSB and which are consistent with his positions set forth in the following sentence. Executive shall be employed as Senior Vice President and Enterprise Risk Officer of Penns Woods and JSSB. Executive shall report directly to the President and Chief Executive Officer of Penns Woods and JSSB. Executive shall devote his full time, attention and energies to the business of the Employer during the Employment Period (as defined in Section 3); provided, however, that this section shall not be construed as preventing Executive from (a) investing his personal assets in enterprises that do not compete with Penns Woods, JSSB or any of their majority-owned subsidiaries (except as an investor owning less than 5% of the stock of a publicly-owned company), or (b) being involved in any civic, community or other activities with the prior approval of the President and Chief Executive Officer of Penns Woods and JSSB. | 90Titles
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This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, regardless of the laws that might otherwise govern under applicable principles of conflicts of law. | 47Governing Laws
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Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties; provided, however, that SV3 may assign any of its rights hereunder to any of its Affiliates. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. In the event any party hereto assigns or transfers any Ordinary Shares to any Affiliate of such party, such Affiliate shall be bound by this Agreement the same as the party that assigned or transferred such Ordinary Shares. | 7Assignments
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All notices under this Agreement shall be mailed or delivered by hand to the parties at their respective addresses set forth beneath their signatures below or at such other address as may be designated in writing by either of the parties to one another, or to their permitted transferees if applicable. Notices shall be effective upon receipt. | 65Notices
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(a) All written information furnished to either Agent or any Lender and all other information presented to either Agent or any Lender in due diligence sessions, in each case, by the Borrower or any of its representatives (other than projections (if any)) is, when taken as a whole, complete and correct in all material respects and does not, when taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which such statements were made and (b) any projections made available to either Agent or any Lender by the Borrower or any of its representatives have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished (it being understood that such projections are not to be viewed as facts and are subject to significant uncertainties and contingencies, any of which are beyond the Borrower’s control, and that no assurance can be given that any particular projection will be realized, that actual results may differ from projected results and that such differences may be material). The Borrower has disclosed to the Agents and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could be reasonably be expected to result in a Material Adverse Effect. | 31Disclosures
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