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Except as set forth on Schedule 3.1(p), the Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost. | 51Insurances
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The Credit Parties shall reimburse the Administrative Agent and the Lenders for all fees and expenses of the Administrative Agent and the Lenders (including without limitation, all fees and expenses of counsel to the Administrative Agent and the Agent Financial Advisor) incurred in connection with the Credit Documents, including without limitation this Agreement. | 41Expenses
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In the event the Indemnified Parties have a good faith reason to believe that an environmental hazard involving a Hazardous Substance in violation of Environmental Law exists on the Property that, endangers any tenants or other occupants of the Property or their guests or the general public, upon reasonable notice from the Indemnitee, Indemnitor shall, at Indemnitor’s expense, promptly cause an engineer or consultant reasonably satisfactory to the Indemnified Parties to conduct any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of the Indemnified Parties) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Indemnitee and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to the Indemnified Parties within a reasonable period, then, upon reasonable notice to Indemnitor, the Indemnified Parties and any other Person designated by the Indemnified Parties, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of the Indemnified Parties) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing, unless, in the case of such results not being delivered to the Indemnified Parties within a reasonable period, such results are delivered to the Indemnified Parties prior to the taking of any such activities by any such Person. If the Indemnified Parties shall have a right of access to the Property pursuant to this Section 3, Indemnitor shall cooperate with and provide the Indemnified Parties and any such Person designated by the Indemnified Parties with such access. | 24Cooperation
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The term of this Agreement shall begin on the Effective Date and shall end on the third year anniversary of the Effective Date (the “ Term ”); provided, that on the third year anniversary of the Effective Date and on each successive year anniversary thereafter, the Initial Term shall automatically be extended for additional one-year periods (the Initial Term, together with any extension thereof, the “ Term ”) unless either Party provides the other Party with a notice of termination at least ninety (90) days before any such year anniversary. Notwithstanding the foregoing, the Executive’s employment hereunder may be terminated during the Term, subject to Section 1(d) of the Standard Terms and Conditions, attached hereto and incorporated herein. | 89Terms
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Acquiror and Merger Sub have all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been, or will have been by the Closing, duly authorized by all necessary corporate action on the part of Acquiror and Merger Sub. This Agreement has been duly executed and delivered by Acquiror and Merger Sub and constitutes the valid and binding obligations of Acquiror and Merger Sub enforceable against Acquiror and Merger Sub in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally, and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any material obligation or loss of a material benefit under (a) any provision of the Certificate of Incorporation or Bylaws of Acquiror or any of its Subsidiaries; or (b) any material mortgage, indenture, lease, contract or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Acquiror or any of its Subsidiaries or their properties or assets in the case of clause (b), except for such conflicts, violations, defaults, rights of termination, cancellation or acceleration as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Acquiror. No consent, approval, order or authorization of or registration, declaration or filing with any Governmental Entity is required by or with respect to Acquiror or any of its Subsidiaries in connection with the execution and delivery of this Agreement by Acquiror and Merger Sub or the consummation by Acquiror and Merger Sub of the transactions contemplated hereby, except for the filing of the Certificate of Merger, as provided in Section 2.2. | 9Authority
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(a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable companies insurance on all its property in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruptions) as are usually insured against in the same general area by companies engaged in the same or a similar business. | 51Insurances
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Except for taxes (other than Other Taxes) which shall be solely covered by Section 3.9, (a) all reasonable and documented out-of-pocket costs and expenses including reasonable and documented attorneys’ fees and disbursements (but subject to the number of counsel set forth in the paragraph labeled “First” in Section 11.6 of this Agreement) incurred by Agent on its behalf or on behalf of the Purchasers and (b) reasonable and documented attorney’s fees and disbursements (but subject to the number of counsel set forth in the paragraph labeled “Third” in Section 11.6 of this Agreement) incurred by the Purchasers, in each case, (i) in all efforts made to enforce payment of any Obligation or effect collection of any Collateral or enforcement of this Agreement or any of the other Note Documents, or (ii) in connection with the entering into, modification, amendment and administration of this Agreement or any of the other Note Documents or any consents or waivers hereunder or thereunder and all related agreements, documents and instruments, or (iii) in instituting, maintaining, preserving, enforcing and foreclosing on Agent’s security interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of Agent’s or any Purchaser’s rights hereunder or under any of the other Note Documents and under all related agreements, documents and instruments, whether through judicial proceedings or otherwise, or (iv) in defending or prosecuting any actions or proceedings arising out of or relating to Agent’s or any Purchaser’s transactions with any Note Party or (v) in connection with the performance of its obligations under the Note Documents or any advice given to Agent or any Purchaser with respect to its rights and obligations under this Agreement or any of the other Note Documents and all related agreements, documents and instruments, may be charged to the Issuer and shall be part of the Obligations. | 41Expenses
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The Stockholder has all requisite power and authority to execute and deliver this Support Agreement, to perform the Stockholder’s obligations hereunder (including, without limitation, Section 3(c)) and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Stockholder of this Support Agreement, the performance by the Stockholder of Stockholder’s obligations hereunder (including, without limitation, Section 3(c)) and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Stockholder, and no other actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery by the Stockholder of this Support Agreement, the performance by the Stockholder of such Stockholder’s obligations hereunder (including, without limitation, Section 3(c)) and the consummation of the transactions contemplated hereby. | 9Authority
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The Seller shall promptly notify the Purchaser of any material adverse change (as determined in Seller’s reasonable judgment) in the business, prospects, assets or condition, financial or otherwise, of the Seller and of any material litigation or governmental proceeding or investigation brought or, to the Seller’s knowledge, threatened against the Seller, or against any officer, director, key employee or principal stockholder of the Seller which, if adversely determined, would have a material adverse effect on the business, operations, financial or prospects of the Seller. | 58Litigations
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Administrative Agent shall have received from Lenders constituting at least the Majority Lenders, Parent and Borrower, counterparts (in such number as may be requested by Administrative Agent) of this Amendment signed on behalf of such Persons. | 26Counterparts
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All notices, requests and demands to or upon the Administrative Agent or any Grantor hereunder shall be in writing and effected in the manner provided for in Section 10.2 of the Credit Agreement. | 65Notices
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All notices, communications and instructions required or desired to be given under this Agreement must be in writing and shall be deemed to be duly given if sent by registered or certified mail, return receipt requested, or overnight courier, to the addresses set forth in the Asset Purchase Agreement or provided to the Escrow Agent in writing under separate cover. | 65Notices
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This Assignment shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. | 13Binding Effects
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If a Participant terminates from employment , the Participant’s vested Accrued Benefit shall be deferred to the earliest of the Participant’s death, Total and Permanent Disability or attainment of Normal Retirement Age, at which time such vested benefit shall be payable in accordance with Sections 13.06 and 13.13. | 44Forfeitures
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After giving effect to Section 2.2 of this Amendment, the representations and warranties of each Loan Party contained in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof as though made on and as of the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date. | 76Representations
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Appropriate provision, which may include the election by the grantee to have the Company withhold from the Common Stock to be issued upon exercise of an option a number of shares having an aggregate fair market value that is determined by the Company to be appropriate to cover up to the maximum tax withholding amount or to surrender to the Company (either by actual delivery or attestation to the ownership) of shares of Common Stock already owned having an aggregate fair market value to satisfy the desired withholding amount, shall be made for all taxes required to be withheld from shares of Common Stock issued under this Plan under the applicable laws or other regulations of any governmental authority, whether federal, state or local, and domestic or foreign. To that end, the Company may at any time take such steps as it may deem necessary or appropriate (including sale or retention of shares) to provide for payment of such taxes. | 99Withholdings
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In consideration of Services, the Consultant will be paid Nine Thousand Five Hundred United States Dollars (USD 9,500) per month (the “ Consulting Fee ”). The Consultant shall not receive any additional benefits or compensation for Services, except for the reimbursement of expenses, as is more fully described below in Section 7. | 68Payments
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This Note and any amendments to it may be executed in any number of counterparts each of which taken together shall be deemed to constitute one and the same agreement and each of which individually shall be deemed to be an original, with the same effect as if the signature on each counterpart were on the same original. Delivery of an executed counterpart of this Note by facsimile or transmitted electronically in either a Tagged Image Format File (“ TIFF ”) or Portable Document Format (“ PDF ”) shall be equally effective as delivery of a manually executed counterpart of this Note. | 26Counterparts
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The Borrower will, and will cause each of its Subsidiaries to, use the proceeds of the Loans and any Incremental Facility for general working capital requirements of the Borrower, Permitted Acquisitions, and general corporate purposes, in each case, not in contravention of any Law or of any Loan Document. | 92Use Of Proceeds
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE PROVINCE OF ALBERTA AND THE LAW OF CANADA APPLICABLE THEREIN. | 47Governing Laws
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Each covenant, agreement, representation, warranty and indemnification made by Tenant set forth in this Section 5.3 shall survive the expiration or earlier termination of this Lease and shall remain effective until all of Tenant’s obligations under this Section 5.3 have been completely performed and satisfied. | 85Survival
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The Employment Agreement shall continue in full force and effect for the term beginning November 1, 2017 and ending December 31, 2027, unless sooner terminated pursuant to the Employment Agreement. | 89Terms
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If any one or more of the provisions contained in this Amendment, the Credit Agreement, or the Other Documents shall be held invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained in this Amendment, the Credit Agreement or the Other Documents shall not in any way be affected or impaired thereby, and this Amendment, the Credit Agreement and the Other Documents shall otherwise remain in full force and effect. | 79Severability
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The Participant agrees not to disclose the terms of this Agreement to anyone other than the members of the Participant’s immediate family or the Participant’s counsel or financial advisors and agrees to advise such persons of the confidential nature of this offer. | 20Confidentiality
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During the Employment Period, the Executive shall receive a base salary (the “ Base Salary ”) of $430,000 per annum, which amount reflects the Executive’s 2016 Base Salary and may be increased by the Compensation Committee, as provided below. The Base Salary shall be paid in installments at such intervals as the Company pays executive salaries generally, but not less often than monthly. During the Employment Period, the Base Salary shall be reviewed at least annually for possible increase (but not decrease) in the Company’s sole discretion, as determined by the compensation committee (the “ Compensation Committee ”) of the Board of Directors of the Company (the “ Board ”). The term “Base Salary” as utilized in this Agreement shall refer to Base Salary as so adjusted. Any increase in Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. | 11Base Salary
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Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own account in dollars, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period applicable to such Issuing Bank. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of Letter of Credit Application, Issuer Document or other agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding the foregoing, no Issuing Bank shall be under any obligation to issue any Letter of Credit if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it. | 46General
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If any provision of this Agreement is held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then: (a) such provision will be deleted from this Agreement in that jurisdiction to the extent of such invalidity or unenforceability without invalidating the remaining provisions of this Agreement, and any such unenforceability in that jurisdiction will not make that provision unenforceable in any other jurisdiction; and (b) the parties will agree on an alternative provision that best accomplishes the objectives of such provision, to the extent legally permissible in such jurisdiction. | 79Severability
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The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be deemed to be jointly drafted by the Company and the Purchaser and shall not be construed against any Person as the drafter hereof. | 23Construction
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Subject to and concurrent with the consummation of the IPO, the Trust shall issue and sell to the Manager and the Manager shall purchase from the Trust, the Private Placement Shares at a purchase price per Private Placement Share equal to the initial public offering price per Share in the IPO. | 77Sales
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Each Lender may, without the consent of Agent or Borrower, sell participations to one or more Lenders or other entities (but not to any natural Person) in all or a portion of such Lender’s rights and obligations under this Agreement and the other Loan Documents; provided that (a) any such sale or participation shall not affect the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle such participant to any rights or privileges under this Agreement or any Loan Documents, including without limitation, rights granted to the Lenders under §§4.3, 4.8, 4.9, 4.10 and 13, (c) such participation shall not entitle the participant to the right to approve waivers, amendments or modifications, (d) such participant shall have no direct rights against the Borrower, (e) such sale is effected in accordance with all Applicable Laws, and (f) such participant shall not be a Person controlling, controlled by or under common control with, or which is not otherwise free from influence or control by the Borrower and/or any Guarantor and shall not be a Defaulting Lender or an Affiliate of a Defaulting Lender; provided , however , such Lender may agree with the participant that it will not, without the consent of the participant, agree to (i) increase, or extend the term or extend the time or waive any requirement for the reduction or termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon or (v) release any Guarantor or any material Collateral (except as otherwise permitted under this Agreement). Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f. 103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. | 67Participations
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Executive acknowledges that the Company has a compelling business interest in preventing unfair competition stemming from the intentional or inadvertent use or disclosure of the Company’s Proprietary Information. Executive further acknowledges and agrees that damages for a breach or threatened breach of any of the covenants set forth in this Section 5 will be difficult to determine and will not afford a full and adequate remedy, and therefore agrees that the Company, in addition to seeking actual damages in connection therewith and the termination of the Company’s obligations in hereunder, may seek specific enforcement of any such covenant in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction without the necessity of showing any actual damages or posting any bond or furnishing any other security, and that the specific enforcement of the provisions of this Agreement will not diminish Executive’s ability to earn a livelihood or create or impose upon Executive any undue hardship. Executive also agrees that any request for such relief by the Company shall be in addition to, and without prejudice to, any claim for monetary damages that the Company may elect to assert. | 75Remedies
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This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. | 47Governing Laws
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The Company shall use all the proceeds of (i) the Loan in accordance with the Term Loan Agreement and (ii) the Share Purchase Price for the repayment of debt and making investments in strategic growth business areas. | 92Use Of Proceeds
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It is the desire and intent of the parties hereto that the provisions of this letter agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this letter agreement will be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, will be ineffective, without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of this letter agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it will, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this letter agreement or affecting the validity or enforceability of such provision in any other jurisdiction. | 79Severability
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Without consent from the Bank, Borrower will not create, incur, or suffer to exist any Lien on the Collateral except (i) the security interest created by this Security Agreement, and (ii) Permitted Liens permitted pursuant to the Loan Documents. | 57Liens
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No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to have a Material Adverse Effect. | 39Erisa
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Tenant represents and warrants to Landlord: (i) the execution and delivery of, the consummation of the transactions contemplated by and the performance of all its obligations under, this Amendment by Tenant have been duly and validly authorized by its board of directors, if necessary, and by its stockholders, if necessary, at meetings duly called and held on proper notice for that purpose at which there were respective quorums present and voting throughout; (ii) no other approval, partnership, corporate, governmental or otherwise, is required to authorize any of the foregoing or to give effect to Tenant’s execution and delivery of this Amendment; and (iii) the individual (or individuals) who executes and delivers this Amendment on behalf of Tenant is authorized to do so. | 9Authority
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Provided that no Default or Event of Default has occurred and is then continuing, the Borrowers shall have the option to (a) convert at any time following the third Business Day after the Original Closing Date all or any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or a whole multiple of $1,000,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrowers desire to convert or continue Loans as provided above, the Parent Borrower shall give the Administrative Agent irrevocable prior written notice in the form attached as E x hibit E (a “ Notice of Conversion/Continuation ”) not later than 11:00 a.m. three (3) Business Days before the day on which a proposed conversion or continuation of such Loan is to be effective specifying (A) the Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to be converted or continued, the last day of the Interest Period therefor, (B) the effective date of such conversion or continuation (which shall be a Business Day), (C) the principal amount of such Loans to be converted or continued, and (D) the Interest Period to be applicable to such converted or continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the affected Lenders of such Notice of Conversion/Continuation. If on any day a Loan is outstanding with respect to which a Notice of Borrowing or a Notice of Conversion/Continuation has not been delivered to the Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan. | 65Notices
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Within twenty (20) days (or such later date as may be agreed by the Lead Lender) of any Subsidiary of the Borrower being created or acquired, Borrower will (a) promptly take all action necessary to comply with Section 5.15, (b) promptly take all such action and execute and deliver, or cause to be executed and delivered, to the Administrative Agent all such opinions, documents, instruments, agreements, and certificates similar to those described in Section 4.01(b) and Section 4.01(d) that the Administrative Agent or the Lead Lender may reasonably request, and (c) promptly cause such Subsidiary to (i) become a party to this Agreement and Guarantee the Obligations by executing and delivering to the Administrative Agent a Counterpart Agreement in the form of Exhibit C , (ii) to the extent required to comply with Section 5.10, execute and deliver Mortgages and other Security Documents creating Liens in favor of the Administrative Agent, subject in priority only to Permitted Prior Liens and Permitted Senior Liens, in such Subsidiary’s Oil and Gas Property and substantially all of such Subsidiary’s personal property, and (iii) to the extent required to comply with Section 5.11, all title opinions and other information. Upon delivery of any such Counterpart Agreement to the Administrative Agent, notice of which is hereby waived by each Credit Party, such Subsidiary shall be a Guarantor and shall be as fully a party hereto as if such Subsidiary were an original signatory hereto. Each Credit Party expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Credit Party hereunder. This Agreement shall be fully effective as to any Credit Party that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Credit Party hereunder. With respect to each such Subsidiary, the Borrower shall promptly send to the Administrative Agent written notice setting forth with respect to such Person the date on which such Person became a Subsidiary of the Borrower, and, within 30 (thirty) days (or such later date as may be agreed by the Lead Lender) of creation or acquisition of such Subsidiary, supplement the data required to be set forth in the Schedules to this Agreement as a result of the acquisition or creation of such Subsidiary; provided that such supplemental data must be reasonably acceptable to the Lead Lender. | 83Subsidiaries
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THE PARTIES ACKNOWLEDGE AND AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED AND THAT MONETARY DAMAGES WOULD NOT BE AN ADEQUATE REMEDY THEREFOR. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OR THREATENED BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY COURT OF COMPETENT JURISDICTION, IN EACH CASE WITHOUT PROOF OF DAMAGES OR OTHERWISE (AND EACH PARTY HEREBY WAIVES ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN CONNECTION WITH SUCH REMEDY), THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. THE PARTIES AGREE NOT TO ASSERT THAT A REMEDY OF SPECIFIC ENFORCEMENT IS UNENFORCEABLE, INVALID, CONTRARY TO LAW OR INEQUITABLE FOR ANY REASON, NOR TO ASSERT THAT A REMEDY OF MONETARY DAMAGES WOULD PROVIDE AN ADEQUATE REMEDY. | 37Enforcements
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In addition to the other sums payable under this Agreement, Partnership shall pay, and hold Manager harmless against, all sales, use or other taxes, or other fees or assessments imposed by any Legal Requirement in connection with the provision of the Services, other than income, franchise or margin taxes measured by Manager’s net income or margin and other than any gross receipts or other privilege taxes imposed on Manager. Manager and Partnership shall cooperate with each other and use commercially reasonable efforts to assist the other in entering into such arrangements as the other may reasonably request in order to minimize, to the extent lawful and feasible, the payment or assessment of any taxes relating to the transactions contemplated by this Agreement; provided, however , that nothing in this Section 4(b) shall obligate Manager to cooperate with, or assist, Partnership in any arrangement proposed by Partnership that would, in Manager’s sole discretion, have a material detrimental effect on Manager. | 87Taxes
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The Optionee shall, not later than the date as of which the exercise of this Stock Option becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Company shall have the authority to cause the minimum required tax withholding obligation to be satisfied, in whole or in part, by withholding from shares of Stock to be issued to the Optionee a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due. | 86Tax Withholdings
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Employer and Releasees have the right to assign this Agreement, but Employee does not. This Agreement inures to the benefit of the successors and assigns of the Employer, who are intended third party beneficiaries of this Agreement. | 7Assignments
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Executive agrees that he will cooperate fully with the Company and its counsel, upon their request, with respect to any potential or pending proceeding (including, but not limited to, any litigation, arbitration, regulatory proceeding, investigation or governmental action) that relates at least in part to matters with which Executive was involved while he was an employee of the Company or any of its affiliates, or with which he has knowledge. Executive agrees to render such cooperation in a timely fashion and to provide Company personnel and counsel with the full benefit of his knowledge with respect to any such matter, and will make himself reasonably available for interviews, depositions, or court appearances at the request of the Company or its counsel. Executive also agrees to timely complete, after receipt from the Company, a Director & Officer Questionnaire covering 2016 in January 2017 and to provide other information reasonably required for the Company’s proxy disclosures. The Company and Executive acknowledge and agree that, as of the Effective Date, the 10b5-1 Trading Plan dated September 8, 2016 between the Company and Executive is terminated. | 24Cooperation
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Payment of any sums due to the Holder under the terms of this Promissory Note shall be made in United States Dollars by check or wire transfer at the option of the Company. Payment shall be made at the address last appearing on the records of the Company as designated in writing by the Holder hereof from time to time. If any payment hereunder would otherwise become due and payable on a day on which banks are closed or permitted to be closed in Houston, Texas, such payment shall become due and payable on the next succeeding day on which banks are open and not permitted to be closed in Houston, Texas (“ Business Day ”). The forwarding of such funds shall constitute a payment of outstanding principal and/or interest hereunder and shall satisfy and discharge the liability for principal and interest on this Promissory Note to the extent of the sum represented by such payment. | 68Payments
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Shareholder approval for the Prior Securities was obtained on August 23, 2016. The limitations of Section I.G.7.b of Certificate of Designations will not apply to the Preferred Shares. Company will obtain an exception to any shareholder approval requirement from NYSE American or obtain shareholder approval. | 5Approvals
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The Borrower shall not, and shall ensure each Subsidiary shall not, make or cause any payment to, or sell, lease, transfer or otherwise dispose of any of its Assets to, or purchase any Assets from, or enter into or make, replace, terminate or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, the Sponsor or its Affiliates or any of the Affiliates of the Borrower and each of their respective members and principals (each, an “Affiliate Transaction”), unless the Affiliate Transaction is upon terms and conditions that are intrinsically fair, commercially reasonable and on terms no less favorable to such Relevant Party than those that would be available on an arms-length basis with an unrelated Person (other than (i) Restricted Payments permitted to be made under Section 7.06, (ii) the Transaction Documents in existence as at the Closing Date or (iii) transactions that are permitted pursuant to Section 7.03). | 91Transactions With Affiliates
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All notices, requests and demands to or upon the respective parties hereto shall be given in the manner, and become effective, as set forth in Section 9.01 of the Amended Credit Agreement. | 65Notices
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This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, including the Original Agreement, but with the exception of the ADR Agreement attached hereto as Appendix A. This Agreement may not be changed, amended, or modified, except by a written instrument signed by the parties; provided, however, that the Company may amend this Agreement from time to time without Employee’s consent to the extent deemed necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of the Code, including regulations and interpretations thereunder, which amendments may result in a reduction of benefits provided hereunder and/or other unfavorable changes to Employee. | 38Entire Agreements
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This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. | 47Governing Laws
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All notices to the ABL Claimholders, on the one hand, or the Priority Lien Representatives and/or the Priority Lien Claimholders, on the other hand, permitted or required under this Agreement shall also be sent to the ABL Agent and the Collateral Trustee, respectively. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties. | 65Notices
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If the duration of, the scope of, or any business activity covered by, any provision of this Section 7 exceeds that which is valid and enforceable under applicable law, such provision will be construed to cover only that duration, scope, or activity that is determined to be valid and enforceable. Executive hereby acknowledges that this Section 7 will be construed so that its provisions are valid and enforceable to the maximum extent, not exceeding its express terms, possible under applicable law. | 60Modifications
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The Federal Arbitration Act (the “Federal Act”), as supplemented by the Oklahoma Arbitration Act (to the extent not inconsistent with the Federal Act), shall apply to the arbitration and all procedural matters relating to the arbitration. | 4Applicable Laws
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The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to Section 15(d) of the Exchange Act for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (all of the foregoing filed within two years preceding the date hereof or amended after the date hereof, or filed after the date hereof, and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, and all registration statements filed by the Company under the Securities Act, being hereinafter referred to as the “ SEC Documents ”). The Company has made available to the Investor through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, 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 the light of the circumstances under which they were made, not misleading. 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 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 respective 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). | 43Financial Statements
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Capitalized terms used but not defined in this Ninth Amendment (including in the recitals above) shall have the meanings assigned to such terms in the Partnership Agreement. | 29Definitions
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If this Agreement has been terminated prior to the expiration of the Review Period in accordance with the terms of this Article III, the Parties hereto shall thereupon be relieved of all liabilities and obligations hereunder (other than those that expressly survive any termination of this Agreement), and Purchaser shall promptly return to Seller any due diligence materials delivered by Seller or any other third party (to the extent in Purchaser’s possession). In the event Purchaser shall terminate this Agreement during the Review Period, Purchaser shall, promptly following notice of termination, provide Seller with all final engineering and architectural reports, environmental reports and lab analyses, appraisals, construction and renovation estimates prepared by third parties, as applicable, or, if no final reports were prepared, the most recent drafts of such reports (collectively, the “ Reports ”) commissioned and received by Purchaser in connection with Purchaser’s Review Period, and with any additional Reports which Purchaser may receive after the delivery of the termination notice, all at no cost or expense to Seller. Purchaser makes no representation or warranty with respect to any information contained or omitted from such Reports and Seller shall not rely upon such Reports. The provisions of this Section 3.06 shall survive the termination of this Agreement. | 88Terminations
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Borrower shall make and cause each Subsidiary to make, due and timely payment or deposit of all material federal, state, and local taxes, assessments, or contributions required of it by law, including, but not limited to, those laws concerning income taxes, F.I.C.A., F.U.T.A. and state disability, and will execute and deliver to Bank, on demand, proof satisfactory to Bank indicating that Borrower or a Subsidiary has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that Borrower or a Subsidiary need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower. | 87Taxes
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All notices, requests and demands to or upon the Administrative Agent or any Guarantor hereunder shall be effected in the manner provided for in Section 9.01 of the Credit Agreement. | 65Notices
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Executive will hold the office of Chief Executive Officer of the Company, the Parent (as defined below) and each of its subsidiaries (“ CEO ”). Executive will have such duties, responsibilities, functions and authority consistent with the position of chief executive officer, as may be assigned, from time to time, by and subject to the direction and supervision of, and shall report to, the Company’s Executive Chairman or if there is no Executive Chairman or the Executive Chairman is unavailable the Company’s board of directors (the “ Board ”), including, in Executive’s capacity as CEO, such duties and responsibilities to the Company, the subsidiaries of the Company and RMG Networks Holding Corporation, a Delaware corporation (the “ Parent ”), consistent with the position of chief executive officer, as may be assigned, from time to time, by and subject to the direction and supervision of the Company’s Executive Chairman or the Board. During the period of employment, Executive will serve as a member of the Board, and a member of the board of directors of the Parent and each of its other subsidiaries. All officers of the Parent, the Company and their subsidiaries shall report to Executive or his designee, notwithstanding the foregoing, the Company’s Executive Chairman shall have direct and immediate access to all Parent, Company and subsidiary employees. During the period of employment, and excluding any periods of vacation or personal leave to which Executive is entitled, (i) Executive will render Executive’s services on a full-time basis to the Company, primarily at the Company’s facility in and around Dallas, Texas, (ii) Executive will apply on a full-time basis all of Executive’s skill and experience to the performance of Executive’s duties, and (iii) Executive may have no other employment and, without the prior written consent of the Company (not to be unreasonably withheld or delayed), no outside business activities (provided that the management of Executive’s personal or family assets and affairs and Executive’s time spent on charitable activities will not be deemed outside activities so long as such activities do not significantly interfere with Executive’s performance of duties under this Agreement). Executive will perform Executive’s duties under this Agreement with fidelity and loyalty to the Company, to the best of Executive’s ability, experience and talent in a diligent, trustworthy, businesslike and efficient manner consistent with Executive’s duties and responsibilities and in accord with best practices within the Company’s industry. So long as they are not inconsistent with the terms of this Agreement, Executive shall also comply with all policies, rules and regulations of the Company as well as all lawful directives and instructions from the Company’s Executive Chairman or the Board of the Parent. The Company shall have the right to purchase in Executive’s name a “key man” life insurance policy naming the Company and any of its subsidiaries as the sole beneficiary thereunder, and Executive agrees to cooperate with the Company’s procurement of such policy, provided that any information provided to an insurance company or broker shall not be provided to the Company without the prior written authorization of Executive. | 32Duties
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This Agreement, and the obligations of the Stockholders hereunder (including, without limitation, Section 2.2 hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur (the “ Expiration Time ”) of (a) the Effective Time, (b) the date of valid termination of the Merger Agreement in accordance with its terms, and (c) at any time upon the written agreement of the Company (acting at the direction of the Independent Committee) and Parent; provided , that, for the avoidance of doubt, to the extent the termination of the Merger Agreement is contested, no party shall be released from liability for violating the terms of this Agreement if a court of competent jurisdiction finally determines that the Merger Agreement had not, in fact, been validly terminated and, therefore, this Agreement had not been validly terminated. Notwithstanding the preceding sentence, Section 4.2(e) , this Article VI and Article VII hereof shall survive any termination of this Agreement. Nothing in this Article V shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement. If for any reason the Merger fails to occur but the Rollover Closing contemplated by Section 3.3 hereof has already taken place, then Parent shall promptly take all such actions as are necessary to restore each Stockholder to the position it was in with respect to ownership of the Rollover Shares prior to such Rollover Closing. | 88Terminations
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Except for the FCC Consent and consents to assign certain of the Station Contracts, the execution, delivery and performance by Seller of this Agreement and the Seller Ancillary Agreements and the consummation by Seller of any of the transactions contemplated hereby does not conflict with any organizational documents of Seller or violate any law, judgment, order, or decree to which Seller is subject, or require the consent or approval of, or a filing by Seller with, any governmental or regulatory authority or any third party, or result in a default, or give rise to any right of termination, cancellation or acceleration, under any term, condition or provision of any contract, encumbrance or other instrument or obligation to which Seller is a party or by which Seller or any of the Station Assets is bound. | 61No Conflicts
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The Plan and all rights of Participants to purchase any Shares hereunder shall terminate at the earlier of the conclusion of the last Offering Period authorized herein, or as otherwise determined by and at the discretion of the Company. | 88Terminations
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Each Borrower shall keep accurate and complete records of its Inventory, including costs and daily withdrawals and additions. Each Borrower shall conduct a physical inventory at least once per calendar year (and on a more frequent basis if requested by the DIP Lender when an Event of Default is continuing) and periodic cycle counts consistent with historical practices, and shall provide to the DIP Lender a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as the DIP Lender may request. | 73Records
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This Stock Option Agreement and the Plan set forth the entire agreement of the parties with respect to the Option granted hereby and may not be changed orally but only by an instrument in writing signed by the party against whom enforcement of any change, modification or extension is sought. | 38Entire Agreements
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The Owner Trustee shall receive as compensation for its services hereunder, such fees as have been separately agreed upon between the Owner Trustee and the Servicer and specified in a separate fee agreement between such parties. Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust for its other reasonable expenses hereunder, as applicable, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder; provided , however , that the Owner Trustee shall only be entitled to reimbursement for expenses hereunder to the extent such expenses (i) are fees and expenses of outside counsel engaged by the Owner Trustee in respect of the performance of its obligations hereunder, or (ii) relate to the performance of its obligations hereunder. The Trust shall pay all fees, expenses and disbursements of the Owner Trustee out of Available Funds available for application or distribution to the Owner Trustee pursuant to the terms of each applicable Indenture Supplement. To the extent the Trust fails to pay such amounts due and owing to the Owner Trustee, the Servicer agrees to pay such amounts. | 41Expenses
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No Loan 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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If any provision of this Agreement shall be deemed invalid or unenforceable as written, this Agreement shall be construed, to the greatest extent possible, or modified, to the extent allowable by law, in a manner which shall render it valid and enforceable. No invalidity or unenforceability of any provision contained herein shall affect any other portion of this Agreement. | 36Enforceability
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Guarantor hereby guarantees that payments hereunder will be paid to the Buyer without set-off or counterclaim in U.S. Dollars. | 68Payments
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Each party hereto agrees to use all reasonable efforts to obtain all consents and approvals and to do all other things necessary to consummate the transactions contemplated by this Agreement. The parties agree to take such further action and to deliver or cause to be delivered any additional agreements or instruments as any of them may reasonably request for the purpose of carrying out this Agreement and the agreements and transactions contemplated hereby. | 45Further Assurances
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The Seller has all requisite limited liability company power, authority and capacity to carry on its business as it is now being conducted, to execute and deliver this Agreement and to perform all of its obligations hereunder. Seller does not believe, nor does it have any cause or reason to believe, that it cannot perform each and every covenant required of it contained in this Agreement. | 9Authority
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THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED IN ACCORDANCE WITH SECTION 2.20(o). | 4Applicable Laws
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If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties . The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). | 79Severability
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No Option may be granted during any period of suspension of the Plan or after termination of the Plan. The Plan shall be submitted for the approval of the Company’s stockholders within twelve (12) months after the date of the Board’s initial adoption of the Plan. Options may be granted prior to such stockholder approval; provided , however , that such Options shall not be exercisable prior to the time when the Plan is approved by the stockholders; provided , further that if such approval has not been obtained by the end of said twelve (12)-month period, all Options previously granted under the Plan shall thereupon terminate and be canceled and become null and void without being exercised. | 89Terms
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The representations and warranties contained in this Agreement shall survive the consummation of the transactions herein indefinitely. | 98Warranties
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Each of Salisbury and Glycotech agrees to indemnify, defend, and hold harmless Purchaser from and against, and to reimburse Purchaser with respect to, any and all claims, demands, losses, damages, liabilities, causes of action, judgments, penalties, costs, and expenses (including attorneys’ fees and expenses and court costs and cost of investigation and remediation) of any and every kind or character, known or unknown, fixed or contingent, imposed on, asserted against, or incurred by Purchaser at any time and from time to time by reason of, in connection with, or arising out of (a) the breach of or noncompliance with any representation, warranty or agreement of Salisbury or Glycotech as set forth herein, (b) the operation of the Facility or the Assets and any activities related thereto or to the Real Property prior to Closing, by or on behalf of Salisbury or Glycotech or any other party, including without limitation a failure to comply with or liabilities arising under Environmental Laws, (c) the existence of any Hazardous Materials at, on or under the Real Property, the Facility or the Assets prior to Closing, or (d) the Excluded Liabilities. | 49Indemnifications
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This document, together with all restrictive covenants in any and all agreements between Executive and the Company or to which Executive is a party (other than any such provisions contained in the Original Agreement) constitute the final, complete, and exclusive embodiment of the entire agreement and understanding between the parties related to the subject matter hereof and except as otherwise explicitly set forth in this Agreement, supersedes and preempts any prior or contemporaneous understandings, agreements, or representations by or between the parties, written or oral, including but not limited to the Original Agreement, which is hereby terminated and superseded in its entirety. | 38Entire Agreements
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The Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, maintain proper books of record and account containing entries of all material financial transactions and matters involving the assets and business of the Borrower and its Restricted Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated financial statements in accordance with GAAP. | 73Records
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There is no single action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “ Action ”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect; except that certain vendors and landlords of the Company have commenced actions seeking amounts allegedly due. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. | 58Litigations
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Tenant shall maintain (a) workers’ compensation insurance (with a waiver of subrogation endorsement reasonably acceptable to Landlord) and commercial general liability insurance (with contractual liability endorsement), including personal injury and property damage in the amount of One Million Dollars ($1,000,000) per occurrence combined single limit for personal injuries and death of persons and property damage occurring in or about the Premises, plus umbrella coverage of at least Two Million Dollars ($2,000,000) per occurrence, and (b) fire and extended coverage insurance covering (1) the replacement cost of all alterations, additions, partitions and improvements installed in the Premises by or on behalf of a Tenant Party, and (2) the replacement cost of all of Tenant’s personal property in the Premises. Such policies shall (A) name Landlord, Landlord’s agents, and their respective Affiliates (defined below), as additional insureds (and as loss payees on the fire and extended coverage insurance), (B) be issued by an insurance company licensed to do business in the State of Colorado with a Best’s Guide Insurance Rating of A-VII, or better, and otherwise acceptable to Landlord, (C) provide that such insurance may not be canceled unless thirty (30) days’ prior written notice is first given to Landlord, (D) be delivered to Landlord by Tenant before the Commencement Date and at least thirty (30) days before each renewal thereof, and (E) provide primary coverage to Landlord when any policy issued to Landlord is similar or duplicate in coverage, in which case Landlord’s policy shall be excess over Tenant’s policies. | 51Insurances
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No Borrower shall change its principal place of business set forth in the introductory paragraph of this Agreement without first giving the Agent at least thirty (30) days’ prior notice. No Borrower shall change the place of its organization as set forth in Section 4.1.29 without the Approval of the Agent; provided that if no Default has occurred and remains outstanding and if no Event of Default has occurred, such Approval shall not be unreasonably withheld, conditioned or delayed. Upon the Agent’s request of any Borrower, such Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect the Agent’s security interest in any Property as a result of such change of principal place of business or place of organization. | 66Organizations
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Any action taken or decision made by the Company, the Board or the Committee arising out of or in connection with the construction, administration, interpretation or effect of any provision of the Plan, this Agreement or a Participant’s Award Communication shall lie within its sole and absolute discretion, as the case may be, and shall be final, conclusive and binding on the Participant and all persons claiming under or through the Participant. By receipt of the Participant’s Option or other benefit under the Plan, the Participant and each person claiming under or through the Participant shall be conclusively deemed to have indicated acceptance and ratification of, and consent to, any action taken under the Plan, this Agreement or the Participant’s Award Communication, by the Company, the Board or the Committee. | 55Interpretations
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All capitalized terms used herein but not specifically defined in this Fourth Amendment shall have the meanings ascribed to such terms in the Original Lease. The term “ Lease ” where used in the Original Lease and this Fourth Amendment shall hereafter refer to the Original Lease, as amended by this Fourth Amendment. | 28Defined Terms
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Tenant shall, at its sole cost and expense, procure any and all necessary permits, certificates, licenses or other authorizations required for its use of the Premises. If the owner of the Premises is required by law to join in any such application, Landlord shall cooperate fully with Tenant in connection with such application, but at Tenant's cost. To the extent Landlord has been operating the Premises without any necessary permits, certificates, licenses or other authorizations for Landlord's use of the Premises, and if any improvements are required to bring the Premises into compliance for the issuance of any necessary permits, certificates, licenses or other authorizations for Tenant's reasonable use of the Premises, Landlord or prior tenant shall pay for all expenses associated with such improvements. | 5Approvals
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Nothing in this Agreement shall be construed so as to require the commission of any act contrary to law, and wherever there may be any conflict between any provision of this Agreement and any contrary material statute, ordinance, regulation, or other rule of law pursuant to which the parties have no legal right to contract, the latter shall prevail; but in such event the provision of this Agreement so affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of such law. In no event shall such illegality or invalidity affect the remaining parts of this Agreement. | 79Severability
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(a) Subject to Section 8(b) , the powers of the Partnership shall be exercised by or under the authority of, and the business and day-to-day affairs of the Partnership shall be managed by, the Designated Partner. | 70Powers
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In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and each provision of this Agreement shall be enforced to the fullest extent permitted by law. | 79Severability
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This Agreement constitutes the entire agreement between the Parties, which shall not be modified except by writing signed by the Parties. Neither Party has made any representations to the other except as specifically set forth herein or in the APA. | 60Modifications
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This Amendment shall be deemed effective upon the due execution and delivery of this Amendment by each party hereto. | 33Effective Dates
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Any notice required hereunder shall be in writing and shall be sufficiently given if delivered or sent by reputable overnight courier, hand delivered by messenger service, or sent by certified mail return receipt requested (in each case with evidence of receipt), addressed to the Address for Notice under each party’s signature below. | 65Notices
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This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to the Company at the address set forth on its signature page to the Purchase Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY. | 47Governing Laws
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On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $7.0 million of Shares and Warrants. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“ DVP ”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). | 18Closings
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(a) In the event that any dividend or distribution is to be paid on any Pledged Equity Interest at a time when an Event of Default has not occurred and is continuing, such dividend, distribution or payment may, subject to the terms of the Credit Agreement, be paid directly to each Grantor. In addition, prior to the occurrence of any Event of Default and receipt by the Borrower of a notice described in clause (b)(ii) of this Section, such Grantor may exercise its voting and other consensual rights with respect to the Pledged Equity Interests, provided that the same is exercised in a manner not inconsistent with the terms of this Agreement or any other Loan Document. Notwithstanding the foregoing, all distributions in the form of additional Equity Interests shall be paid and delivered to the Administrative Agent and held as additional Collateral hereunder. | 68Payments
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During the term of this Agreement, Executive shall have the right, on the same basis as other members of senior management of the Company, to participate in and to receive benefits under any of the Company’s employee benefit plans, insurance programs and/or indemnification agreements, as may be in effect from time to time, subject to any applicable waiting periods and other restrictions. In addition, Executive shall be entitled to the benefits afforded to other members of the senior executive team under the Company’s holiday and business expense reimbursement policies. Executive shall receive 4 weeks of vacation per year pursuant to the Company’s vacation policies. In addition, Company shall reimburse Executive for the full amount of his insurance costs should he elect to participate in the Company’s health insurance programs. | 12Benefits
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No failure to exercise and no delay in exercising, on the part of either Borrower, the Administrative Agent or any Bank, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. | 63No Waivers
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Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the parties and their respective heirs, executors, administrators, successors, legal representatives, and assigns. | 13Binding Effects
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The Borrower hereby indemnifies each of the Lenders against any loss or expense (including, without limitation, any foreign exchange costs and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain a LIBOR Rate Loan or from fees payable to terminate the deposits from which such funds were obtained) which may arise or be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a consequence of any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a LIBOR Rate Loan or an Alternative Currency Revolving Credit Loan, (b) due to any failure of the Borrower to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor. The amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its Revolving Credit Commitment Percentage of the LIBOR Rate Loans or an Alternative Currency Revolving Credit Loans, as applicable, in the applicable interbank market and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical. A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Agent and shall be conclusively presumed to be correct save for manifest error. | 50Indemnity
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This Agreement and the other Loan Documents to which any of the Borrower or any Guarantor is a party are valid and legally binding obligations of such Person enforceable in accordance with the respective terms and provisions hereof and thereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and general principles of equity. | 36Enforceability
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The term of this Lease (the “ Term ”) shall be for the period which commences on the date (the “ Commencement Date ”) upon which Tenant has substantially completed the tenant improvement work in accordance with Exhibit D attached hereto, estimated to be on or about October 1, 2014 (the “ Target Commencement Date ”), and, unless sooner terminated in accordance with the terms and conditions set forth herein, shall expire on the last day of the one hundred twentieth (120th) full calendar month following the Commencement Date (the “ Expiration Date ”). Notwithstanding the foregoing or anything to the contrary in. this Lease, in no event shall the Commencement Date be later than January l, 2015. Following the Commencement Date, the parties shall promptly execute a Commencement Date Memorandum in the form attached hereto as Exhibit F , wherein the parties shall specify the Commencement Date, the Expiration Date, the final Rentable Area of the Premises, and any changes to the Base Rent schedule set forth on Schedule 1 and Tenant’s Proportionate Share of Excess Operating Expenses. | 89Terms
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This Plan is adopted, and is effective, as of the first day of the Company’s 2017 fiscal year and will be effective for the 2017 Plan year (which coincides with Progressive’s 2017 fiscal year, except that investment returns are calculated on a calendar year basis). | 33Effective Dates
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Employee shall be required to devote his full energy, skill and best efforts as required to the furtherance of his managerial duties with the Company as the Company's Vice President. While serving in such capacities, Employee shall have the responsibilities, duties, obligations, rights, benefits and requisite authority as is customary for his position and as may be determined by the Company's Board of Directors (the "Board"). | 69Positions
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