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At the Closing, the Confidentiality Agreement, shall be amended and restated to the form set forth in Exhibit D attached hereto, to among other things extend until two years after the date on which no Purchaser Designee sits on the Board of Directors and the Purchaser has ceased to hold the right to nominate a Purchaser Designee to the Board of Directors. Notwithstanding anything to the contrary in this Agreement, in the Confidentiality Agreement or any other agreement entered into from time to time by the Company or any of its subsidiaries, the Company agrees that the Purchaser or any of its Affiliates may disclose any confidential information of or relating to the Company it receives if such disclosure is (i) requested or required by law or any regulatory or governmental authority; provided, the Company is given, to the extent reasonably practicable and legally permitted, prior written notice of such requirement and an opportunity to seek a protective order with respect thereto or (ii) as and to the extent that the Purchaser determines in good faith to be necessary or advisable in light of ongoing review or oversight by a regulatory or governmental authority with jurisdiction over the Purchaser or any of its Affiliates. | 20Confidentiality
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Whenever any cash or other payment is to be made hereunder or with respect to the Restricted Stock Units, the Company or any Subsidiary shall have the power to withhold an amount (in cash, Restricted Stock Units or in Company Common Stock issuable upon settlement of Restricted Stock Units or from other amounts paid to the Participant in cash (whether under the Plan or otherwise)) sufficient to satisfy federal, state, and local withholding tax requirements relating to such transaction; provided , however , that in the event that the Company withholds shares issuable to the Participant (or any portion thereof) to satisfy any applicable withholding taxes, the Company shall only withhold a number of whole shares having a Fair Market Value, determined as of the date of vesting, not in excess of the minimum of tax required to be withheld by law (or such lower amount as may be necessary to avoid liability award accounting). The Company may require the recipient of shares of Company Common Stock to remit to the Company an amount in cash sufficient to satisfy the amount of taxes required to be withheld as a condition to the issuance of shares in settlement of the Restricted Stock Units. The Committee may, in its discretion, require the Participant, or permit the Participant to elect, subject to such conditions as the Committee shall impose, to meet such obligations by having the Company withhold or sell the least number of whole shares of Company Common Stock having a Fair Market Value sufficient to satisfy all or part of the amount required to be withheld. The Company or such Subsidiary may defer the settlement of Restricted Stock Units until such withholding or other tax requirements are satisfied and if the Participant has not satisfied such withholding or other tax requirements as of the last day of the calendar year in which the Vesting Date occurs, the Restricted Stock Units shall be forfeited. The Participant shall be responsible for all withholding taxes and other tax consequences of this award of Restricted Stock Units. | 86Tax Withholdings
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THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, EXCEPT TO THE EXTENT THAT THE UCC PROVIDES THAT PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH CASE THE LAWS OF SUCH JURISDICTION SHALL GOVERN WITH RESPECT TO THE PERFECTION OF THE SECURITY INTEREST IN, OR THE REMEDIES WITH RESPECT TO, SUCH PARTICULAR COLLATERAL. | 47Governing Laws
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Each Company owns, or has the right to use, all of the patents, patent applications, industrial designs, designs, trademarks, service marks, copyrights and licenses, and rights with respect to the foregoing, necessary for the conduct of its business without any known conflict with the rights of others. Schedule 6.17 hereto sets forth all federally registered patents, trademarks, copyrights, service marks and license agreements owned by each Company as of the Closing Date. | 53Intellectual Property
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The Administrative Agent hereby consents to this Amendment. | 22Consents
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During the Employment Period, the Company shall pay the Executive, as compensation for the performance of the Executive’s duties and obligations under this Agreement, an annual base salary of $415,000, payable in a manner that is consistent with the Company’s usual payroll practices for senior executives. The Executive’s Base Salary shall be reviewed annually by the Board or the Compensation Committee of the Board (the “ Committee ”) for adjustment. Such adjustment, if any, shall be within the sole discretion of the Board or, to the extent delegated by the Board, the Committee. The annual base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary shall not be reduced at any time without the express written consent of the Executive. | 11Base Salary
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(i) Seller is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware. Seller (x) has all requisite corporate or other power, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted; (y) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary; and (z) has full power and authority to execute, deliver and perform its obligations under the Facility Documents. (ii) Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware. Guarantor (x) has all requisite corporate or other power, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted; (y) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary; and (z) has full power and authority to execute, deliver and perform its obligations under the Facility Documents. | 66Organizations
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The Lead Borrower has heretofore furnished to the Lenders the Historical Financial Statements. The Historical Financial Statements present fairly the financial condition and results of operations and cash flows of the applicable Loan Parties as of such dates and for such periods. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of such Loan Parties as of the dates thereof. Such financial statements were prepared in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to year-end audit adjustments and the absence of footnotes. | 43Financial Statements
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The Advisor shall not divulge to anyone, either during or at any time after the termination of this Agreement, any information constituting a trade secret or other confidential information acquired by it concerning the Company, its affiliates or subsidiaries, except in the performance of his duties hereunder, without the prior written consent of the Company (“ Confidential Information ”). However, in the event Advisor is required by law to disclose any Confidential Information, it shall first notify the Company in order to allow the Company to obtain a judgment or order restraining such disclosure. The Advisor acknowledges that any Confidential Information is of great value to the Company, and upon the termination of its engagement hereunder, the Advisor shall forthwith deliver to the Company all notebooks and other data in its possession relating to the Company and its affiliates and subsidiaries. | 20Confidentiality
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If Executive incurs a Disability, Company shall have no obligation to Executive or legal representatives of Executive other than (i) payment of termination compensation in the amount equal to two (2) times Executive's annual Base Compensation in effect on the date of the determination of the Disability, subject to applicable withholding taxes, and payable, subject to Section 8(g), in accordance with Company’s payroll cycle during the two (2) year period commencing on the date of the determination of the Disability; (ii) payment of the Executive’s "target bonus," as that term is used in Company's current bonus plan for full time officers of Company, or its equivalent if the term or plan should be amended, which Executive would have been otherwise entitled to receive each year during the two (2) year period commencing on the date of the determination of the Disability, payable, subject to Section 8(g), in each of the two years following the year of the determination of the Disability; (iii) payment of any accrued benefits or obligations owed to Executive; (iv) benefits (if any) provided in accordance with applicable plans, programs and arrangements of Company or as required by law; and (v) any outstanding equity grant(s) held by Executive at the time of such termination as governed by the agreement or plan pursuant to which such grant(s) was issued. | 30Disability
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Each Party agrees that, in connection with the performance and exercise of its rights and obligations under this Agreement, it will comply with all applicable Law, including without limitation the FCPA and /or all applicable Anti-Corruption Laws. In particular, neither Party nor any of its directors, officers, employees or agents will, directly or indirectly, make, offer, promise, authorize, solicit or accept any unlawful payment, kickback, gift, rebate, or other thing of value to, from, or for the benefit of any Person to obtain or retain business for or with, or to direct business to, any Person. | 19Compliance With Laws
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If a scheduled payment under the Promissory Note is not made in a timely manner, Bank is authorized by Borrower to debit the amount of any such payments from any general deposit account of Borrower with Bank. If at any time the Principal Balance exceeds the Borrowing Limit, Borrower shall within two Business Days repay to Bank an amount sufficient to eliminate such excess. | 68Payments
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This Agreement may be executed and delivered electronically and in 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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Each of the Borrower and each Subsidiary has good record and marketable title in fee simple or the local equivalent thereof to, or valid leasehold interests in, all material real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. | 57Liens
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You and the Company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment or service with the Company and the termination thereof, including, but not limited to, claims for unpaid wages, wrongful termination, torts, stock or stock options or other ownership interest in the Company, and/or discrimination (including harassment) based upon any federal, state or local ordinance, statute, regulation or constitutional provision, except that each party may, at its, his or her option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party’s private, proprietary, confidential or trade secret information (collectively, “ Arbitrable Claims ”). Further, to the fullest extent permitted by law, you and the Company agree that no class or collective actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in your or the Company’s individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding. Nothing in this Arbitration and Class Action Waiver section, however, restricts your right, if any, to file in court a representative action under California Labor Code Sections 2698, et seq. | 6Arbitration
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Each Party will execute, acknowledge and deliver such further instruments, and do all such other ministerial, administrative or similar acts, as may be necessary or appropriate in order to carry out the expressly stated purposes and the clear intent of this Agreement. | 45Further Assurances
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(a) Undefined Terms . Unless the context otherwise provides or requires, capitalized terms used herein which are not defined herein shall have the meanings ascribed to them in the Loan Agreement; provided , however , that all references in the Loan Agreement to (a) “Obligations” shall, in addition to the definition set forth in the Loan Agreement include, but not be limited to, the duties and obligations of the Borrowers under this Amendment, and (b) “Loan Documents” shall, in addition to the definition set forth in the Loan Agreement include, but not be limited to, this Amendment and the documents and instruments to be delivered pursuant to this Amendment. | 29Definitions
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The Lenders agree to indemnify each Agent and its officers, directors, employees, Affiliates, agents, advisors and controlling persons (each, an “ Agent Indemnitee ”) (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. | 49Indemnifications
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All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined pursuant to Section 11 of the Series E Warrant. | 47Governing Laws
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Subject to the limitations on liability set forth in Section 8(a) hereof, each party shall indemnify, defend and hold harmless the other parties from and against any and all claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees and expenses) incurred by the other party or any of its Affiliates or Representatives caused by or arising out of the willful misconduct or gross negligence of such indemnifying party in the performance or non-performance of its obligations hereunder or the breach by such indemnifying party of any of the express provisions hereof. The Affiliates and Representatives of each of the parties shall be express and intended third-party beneficiaries of this Section 8(b). Notwithstanding anything to the contrary contained herein, the liability of any party under this Section 8(b) shall not exceed the aggregate amount of Fixed Fees paid by BH during the Term. | 49Indemnifications
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Notwithstanding any other provision of this Agreement, any severance or termination payments or benefits described are conditioned on Executive’s execution and delivery to the Employer of an effective general release and non-disparagement agreement in a form prescribed by the Employer substantially in conformity with such agreement attached hereto as Annex A and in a manner consistent with the requirements of the Older Workers Benefit Protection Act and any applicable state law. | 74Releases
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Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Seller shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase from the Seller, all right, title and interest in and to the Membership Units free and clear of all Liens. | 77Sales
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This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. | 47Governing Laws
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Programmer shall indemnify and hold Licensee harmless against any and all liability arising from the broadcast of the Programs on the Station, including without limitation all liability for indecency, libel, slander, illegal competition or trade practice, infringement of trademarks, trade names, or program titles, violation of rights of privacy, and infringement of copyrights and proprietary rights or any other violation of third party rights or FCC rules or other applicable law. Licensee shall indemnify and hold Programmer harmless against any and all liability arising from the broadcast of Licensee’s programming on the Station, including without limitation all liability for indecency, libel, slander, illegal competition or trade practice, infringement of trademarks, trade names, or program titles, violation of rights of privacy, and infringement of copyrights and proprietary rights or any other violation of third party rights or FCC rules or other applicable law. The obligations under this Section shall survive any termination of this Agreement. | 49Indemnifications
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In handling any confidential information of Borrower, each of the Lenders and Agent shall use all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of information obtained by it pursuant to any Financing Document and designated in writing by any Credit Party as confidential, but disclosure of information may be made: (a) to the Lenders’ and Agent’s Subsidiaries or Affiliates; (b) to prospective transferees or purchasers of any interest in the Credit Extensions; (c) as required by Law, regulation, subpoena, order or other legal, administrative, governmental or regulatory request; (d) to regulators or as otherwise required in connection with an examination or audit, or to any nationally recognized rating agency; (e) as Agent or any Lender considers appropriate in exercising remedies under the Financing Documents; (f) to financing sources that are advised of the confidential nature of such information and are instructed to keep such information confidential; (g) to third party service providers of the Lenders and/or Agent so long as such service providers are bound to such Lender or Agent by obligations of confidentiality; (h) to the extent necessary or customary for inclusion in league table measurements; and (i) in connection with any litigation or other proceeding to which such Lender or Agent or any of their Affiliates is a party or bound, or to the extent necessary to respond to public statements or disclosures by Credit Parties or their Affiliates referring to a Lender or Agent or any of their Affiliates. Confidential information does not include information that either: (i) is in the public domain or in the Lenders’ and/or Agent’s possession when disclosed to the Lenders and/or Agent, or becomes part of the public domain after disclosure to the Lenders and/or Agent; or (ii) is disclosed to the Lenders and/or Agent by a third party, if the Lenders and/or Agent does not know that the third party is prohibited from disclosing the information. Agent and/or Lenders may use confidential information for any purpose, including, without limitation, for the development of client databases, reporting purposes, and market analysis, so long as Agent and/or Lenders, as applicable, do not disclose Borrower’s identity or the identity of any Person associated with Borrower unless otherwise permitted by this Agreement. The provisions of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 13.9 supersede all prior agreements, understanding, representations, warranties, and negotiations between the parties about the subject matter of this Section 13.9 . | 20Confidentiality
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Except as set forth on Schedule 2 , as of the Closing Date, each Relevant Party is a registered organization and set forth on Schedule 2 is (i) the jurisdiction of organization and the form of organization of each Relevant Party, (ii) the organizational identification number, if any, of such Relevant Party assigned by such jurisdiction and (iii) the address of the chief executive office of such Relevant Party. | 56Jurisdictions
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The covenants and agreements of Purchaser to be performed on or before the Closing Date in accordance with this Agreement shall have been performed in all material respects. | 1Agreements
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The Supplement is intended to comply with Code Section 409A and guidance issued under Code Section 409A. Notwithstanding any other provision of this Supplement, the Supplement shall be interpreted and administered accordingly. If any provision of the Supplement is held invalid or unenforceable, that invalidity or unenforceability shall not affect any other provision, and the Supplement shall be construed and enforced as if the affected provision had not been included. | 55Interpretations
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Investor shall have the right to approve in advance all financial arrangements, including staffing, rates and fee discounts, for all law firms, experts, consultants, vendors and other service providers that Plaintiff, Litigation Counsel and/or IPR Counsel seeks to retain or employ in connection with the Claim and the Funded IPR Proceedings, which approval shall not be unreasonably withheld or delayed. Plaintiff or, as applicable, Litigation Counsel or IPR Counsel, shall instruct Litigation Counsel, IPR Counsel, vendors and other service providers to provide Investor (directly or, as appropriate, through Litigation Counsel or IPR Counsel, as applicable) with quarterly budgets relating to anticipated fees and expenses (including, in the case of Litigation Counsel, the anticipated expenses for experts and consultants); provide advance notice to Investor of expenditures to the extent practicable; give Investor the opportunity to participate in the selection of vendors and other service providers and to participate in the negotiation of pricing with experts, vendors and other service providers unless otherwise agreed; and submit all bills to Investor for review and approval. Plaintiff, Litigation Counsel and IPR Counsel in all events shall endeavor to retain and use experts, consultants and vendors in the most cost-effective means possible in view of the demands of the Claim and the Funded IPR Proceedings. | 5Approvals
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Except as disclosed on Schedule 6.2(c) . there are no actions, suits, arbitrations, mediations, investigations or similar proceedings pending, or to Farmee’s knowledge, threatened, before any Governmental Entity with respect to Farmee, nor are there any presently outstanding judgments, decrees, injunctions, orders or awards applicable to Farmee, in each case that could adversely affect the ability of Farmee to consummate the transactions contemplated hereby or the obligations attributable to the Farmee Interest under the Contract. | 58Litigations
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Each Party agrees promptly to execute and deliver, or cause to be executed and delivered, any instruments, documents or agreements as may be necessary or desirable to consummate the transactions contemplated under this letter agreement. | 45Further Assurances
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By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. Each First Lien Agent represents and warrants that this Agreement is binding upon the applicable Senior Lenders. Each Second Priority Agent represents and warrants that this Agreement is binding upon the applicable Second Priority Secured Parties. | 10Authorizations
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The provisions of this Agreement which, by their nature and content, are intended, expressly or impliedly, to continue to have effect notwithstanding the completion, rescission, termination, or expiration of this Agreement, shall survive and continue to bind the Parties, including Articles I , V , VI , VII , VIII and XI and Sections 10.02 and 10.04 . | 85Survival
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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 September ___, 2017; provided , however , that no such termination will affect the right of any party to sue for any breach by any other party (or parties). | 88Terminations
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Each Supplement H-6 Participant with a portion of his or her Account consisting of amounts transferred from the JTL Plans in connection with the merger of such plans, shall be fully vested in such Participant’s account balances as pursuant to Section 4.2 of the Plan. | 95Vesting
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The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for Federal income tax purposes, pay to the Corporation 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 Grantee may elect to have the required minimum tax withholding obligation satisfied, in whole or in part, by authorizing the Corporation to withhold from shares of Stock to be issued, 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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Any Future Advance by Lender of Loan proceeds made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto described in this Section 2.5 , whether or not known to Lender, shall not constitute a waiver by Lender of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all additional Future Advances. | 63No Waivers
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Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. | 63No Waivers
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Expiration or termination of this Agreement shall not affect any rights or obligations of either Party that have accrued prior to such expiration or termination. Without limiting the foregoing, the following provisions shall survive any expiration or termination of this Agreement: Articles I, XIII, XV and XVI, and Sections 2.1.4 (1 st sentence only, to the extent that any In-License Agreement has obligations that survive the termination of DS’s sublicense thereunder), 2.8, 4.4 (to the extent required by Applicable Laws), 4.6, 5.3, 5.5 (to the extent required by Applicable Laws), 5.7 (to the extent required by Applicable Laws), 5.8 (to the extent required by Applicable Laws), 6.7 (last sentence only), 9.1 (with respect to sales of Licensed Products occurring prior to termination), 9.2, 9.3, 9.4, 9.5, 10.1, 11.1, 11.2, 11.3, 12.6, 14.3, 14.4 and 14.5. | 85Survival
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This Agreement shall inure to the benefit of and shall be binding upon Employer, its successors and assigns, but without the prior written consent of Executive, this Agreement may not be assigned other than to an affiliate of Employer or in connection with a merger or sale of all or substantially all of the assets of Employer or a similar transaction in which the successor or assignee assumes (whether by operation of law or express assumption) all obligations of Employer hereunder. Employer and The Taubman Realty Group Limited Partnership (“ TRG ”) shall remain liable (including pursuant to the Guaranty) notwithstanding any such assignment and assumption. The obligations and duties of Executive hereunder are personal and otherwise not assignable. Amounts payable to Executive hereunder shall not be subject to sale, transfer, pledge, assignment or alienation other than by will or the laws of descent and distribution. | 85Survival
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Borrowers, through the Borrower Agent, may request and transfer funds based on telephonic or e-mailed instructions to Lender. Borrower Agent shall confirm each such request by prompt delivery to Lender of a Notice of Borrowing but if it differs materially from the action taken by Lender, the records of Lender shall govern. Lender shall not have any liability for any loss suffered by Borrowers as a result of Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith to be a person authorized to give such instructions on a Borrower’s or Borrower Agent’s behalf, as applicable. | 65Notices
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You will not disparage the Company; its officers, directors, employees, shareholders, and agents; or its business or products in any way that is likely to be harmful to its or their business, business reputation, or personal reputation, and you will not encourage any third parties to do so. Without limiting the generality of the foregoing, you will not post disparaging comments in Internet chat rooms, on Internet web sites, or via instant messaging, and you will not be involved with maintaining an Internet chat room or web site that suggests, or suggesting through instant messaging, that others comment on the Company or its management, business or products. | 64Non-Disparagement
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Upon the payment in full of the Obligations and termination of the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver to the Grantors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Marks under this Trademark Security Agreement. | 88Terminations
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All questions pertaining to the construction, validity and effect of this Plan shall be determined in accordance with the laws of the State of Florida, to the extent not preempted by Federal law. | 4Applicable Laws
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Telecopy . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall be effective as an original and shall constitute a representation that an original will be delivered. | 26Counterparts
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This Third Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Third Amendment by facsimile or other electronic transmission (e.g., .pdf) shall be effective as delivery of a manually executed counterpart of this Third Amendment. | 26Counterparts
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Any notices referred to herein shall be in writing and shall be deemed given if delivered in person or by facsimile transmission, telexed or sent by U.S. registered or certified mail to the Participant at his or her address on file with the Company (or to such other address as the Participant shall specify by notice), or to the Company at its principal executive office, Attn: Secretary. | 65Notices
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Upon the occurrence of an Event of Default, Agent, in its discretion, may (and, at the direction of Required Lenders, shall): (A) exercise any one or more of the rights and remedies accruing to a “secured party” under the UCC and any other applicable law upon a default by a debtor; (B) enter, with or without process of law and without breach of the peace, any premises where the Collateral is or may be located, and without charge or liability to Agent therefor, seize and remove the Collateral from said premises or remain upon said premises and use the same for the purpose of collecting, preparing and disposing of the Collateral; (C) sell or otherwise dispose of the Collateral at public or private sale for cash or credit, provided, however, that Borrower shall be credited with the net proceeds of such sale only when such proceeds are actually received by Agent; (D) take control, in any manner, of any item of payment or proceeds of the Collateral and to direct all Account Debtors to make payments directly to Agent; (E) notify any or all Account Debtors that the Accounts and Possessory Collateral have been assigned to Agent and that Agent has a first position priority security interest and Lien therein, subject only to Permitted Liens; (F) direct such Account Debtors to make all payments due from them to Borrower upon the Accounts and Possessory Collateral directly to Agent; and (G) enforce payment of and collect, by legal proceedings or otherwise, the Accounts and Possessory Collateral in the name of Agent and Borrower. | 75Remedies
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As soon as practicable, and in any event within ten (10) days after Borrower has knowledge of the occurrence thereof, (i) Borrower shall provide Lender with notice of the occurrence of any ERISA Event (or, to Borrower’s Knowledge, the occurrence with respect to an unaffiliated third-party property manager engaged by Borrower of an event that would constitute an ERISA Event if it occurred to a Plan, provided that Borrower has an obligation to indemnify such manager in respect of such event) that would reasonably be expected to have a Material Adverse Effect and (ii) if the employees at the Property are employed by a manager other than the Borrower or an ERISA Affiliate, Borrower shall provide Lender with notice of any ERISA Event, relating to any Multiemployer Plan or plan subject to Title IV of ERISA, of which it knows or should have known, which could reasonably be expected to result in a Material Adverse Effect including by reason of indemnification or other contractual agreement with such manager. Borrower shall not (i) permit any ERISA Event to occur and (ii) if the employees at the Property are employed by a manager other than the Borrower or an ERISA Affiliate, incur any liability or obligation with respect to withdrawal or partial withdrawal from a Multiemployer Plan or termination of a plan subject to Title IV of ERISA, whether by reason of indemnification or other contractual agreement with such manager, if in the case of (i) and (ii) above such event could reasonably be expected to, either individually or in the aggregate, have a Material Adverse Effect on the Borrower, the Property or the ability to repay the Debt. | 39Erisa
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In the event a dispute shall arise between the parties to this agreement, the parties agree to participate in at least eight (8) hours of mediation in accordance with the mediation procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS). The mediation shall be administered by JAMS before a mediator in Los Angeles, California under the then applicable JAMS rules. In the event that the parties cannot reach a mutual understanding through mediation, or should either party fail to comply with the mediation agreement, Sublessor and Sublessee waive the right to resolve any such dispute through a trial by jury. Any controversy or claim arising out of or relating to this agreement, that cannot be resolved under mediation, shall be settled by binding arbitration in accordance with the commercial rules then obtaining of JAMS, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. | 6Arbitration
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The provisions of this Article VI shall survive the Closing until fully performed or if a period is specified, for such period. | 85Survival
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This Agreement shall be governed by the laws of the State of Texas as such laws are applied to agreements between Texas residents entered into and to be performed entirely within the State of Texas. | 4Applicable Laws
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The Borrower is the sole Subsidiary of the Parent, and the Parent owns all of the membership interest of the Borrower. Schedule 3 contains an accurate list of all Subsidiaries of the Parent and the Borrower (as of the Closing Date), setting forth their respective jurisdictions of organization and the percentage of their respective capital stock or other ownership interests owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other ownership interests of such Subsidiaries have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized and issued and are fully paid and non-assessable. | 83Subsidiaries
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Wyse shall keep as confidential all non-public information received from the Company in conjunction with this Agreement, except: (i) as requested by the Company or its legal personnel; (ii) as required by legal proceedings; or (iii) as reasonably required in the performance of this Agreement. All obligations as to non-disclosure shall cease as to any part of such information to the extent that such information is or becomes public other than as a result of a breach of this provision. | 20Confidentiality
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It is agreed that (i) each of JPMCB and WF Securities will act as a lead arranger and bookrunner for the Incremental Term Facility (collectively with any other arrangers appointed pursuant to this Section 2, the “ Lead Arrangers ”); provided that JPMCB may provide any of its services as lead arranger and bookrunner through its affiliate J.P. Morgan Securities LLC and (ii) JPMCB will act as administrative agent and collateral agent (in such capacity, the “ Senior Administrative Agent ”) for the Incremental Term Facility. It is further agreed that in any Information Materials (as defined below) and all other offering or marketing materials in respect of the Incremental Term Facility, JPMCB shall have “left side” designation and shall appear on the top left and shall hold the leading role and responsibility customarily associated with such “top left” placement and WF Securities shall appear immediately to the right of JPMCB. You agree that no other agents, co-agents, arrangers or bookrunners will be appointed, no other titles will be awarded and no compensation (other than compensation expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid to any Lender (as defined below) in order to obtain its commitment to participate in the Incremental Term Facility unless you and we shall so agree; provided that (i) within fifteen (15) business days following the date hereof, you may (A) appoint up to two (2) additional joint lead arrangers for the Incremental Term Facility and award such joint lead arrangers additional agent, co-agent or bookrunner titles in a manner and with economics determined by you in consultation with JPMCB and WF Securities and (B) award additional agent or co-agent (but not bookrunner) titles in a manner and with economics determined by you (it being understood that, to the extent you appoint additional agents, co-agents or bookrunners or confer other titles in respect of the Incremental Term Facility, the commitments of JPMCB and Wells Fargo in respect of the Incremental Term Facility will be reduced by the amount of the commitments of such appointed entities (or their relevant affiliates) and the economics awarded to such other arrangers shall be in proportion to their commitments assumed in respect of the Incremental Term Facility), with such reduction allocated to reduce the commitments of the Initial Lenders at such time on a pro rata basis according to the respective amount of their commitments (ii) the Lead Arrangers shall have not less than 85.0% of the total economics for the Incremental Term Facility on the Closing Date and shall have not less than the percentage of the total economics for the Incremental Facility awarded to any other Initial Lender (and its affiliates) and (iii) upon the execution by any other lead arranger, agent, co-agent or bookrunner (and any relevant affiliate) of customary joinder documentation and a customary “sell-down” letter with JPMCB and Wells Fargo, each such financial institution (and any relevant affiliate) shall thereafter constitute a “Commitment Party” and, other than with respect to clause (ii) above, a “Lead Arranger” hereunder and it or its relevant affiliate providing such commitment shall constitute an “Initial Lender” hereunder). | 90Titles
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All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a) . The Company owns, directly or indirectly, the capital stock or other equity interests of each Subsidiary, in the amounts set forth on Schedule 3.1(a), free and clear of any Liens, and all 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. If the Company has no subsidiaries, then all other references in the Transaction Documents to the Subsidiaries or any of them will be disregarded. | 83Subsidiaries
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The Administrative Agent shall have received evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the terms of Section 5.10 hereof and Section 4.12 of the Security Agreement. | 51Insurances
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The Seller does not have any Liabilities or obligations of any nature (whether absolute, accrued, contingent or otherwise and whether due or to become due) except (i) liabilities and obligations occurring in the Ordinary Course of Business since June 30, 2017 consistent with past practice, (ii) as disclosed on the 2016 Balance Sheet or the Interim Balance Sheet, or (iii) as disclosed on Section 3.9 of the Disclosure Schedule. The Seller is solvent. As of the Closing, the Seller will remain solvent and will be able to pay its Liabilities as they become due. The Seller has never been a debtor in any bankruptcy Proceeding, whether voluntary or involuntary, actual or threatened, or has made an assignment of its assets for the benefit of any creditor or otherwise. | 80Solvency
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Each Participant shall pay to the Company, or make provision satisfactory to the Board for payment of, any taxes required by law to be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. Except as the Board may otherwise provide in an Award, when the Common Stock is registered under the Exchange Act, Participants may, to the extent then permitted under applicable law, satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value; provided, however, that the total tax withholding where stock is being used to satisfy such tax obligations cannot exceed the Company ’ s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such taxable income). The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant. | 99Withholdings
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Each Loan Party and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those taxes which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement. | 87Taxes
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The Seller shall maintain all licenses, permits or other approvals necessary for the Seller to conduct its business and to perform its obligations under the Program Agreements, and the Seller shall conduct its business strictly in accordance with Applicable Law. The Seller shall maintain its status as an approved Fannie Mae seller/servicer (“ Fannie Mae Approvals ”). The Seller shall service all Assets in accordance with the Fannie Mae Lender Contract and any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs in all material respects. Should the Seller, for any reason, cease to possess all such Fannie Mae Approvals, or should notification to Fannie Mae or, if and to the extent that any FHA Loans, USDA Loans or VA Loans are Subject Mortgages, to HUD, FHA, USDA or VA as described in Section 3.16 hereof be required, the Seller shall so notify the Buyer promptly in writing. Notwithstanding the preceding sentence, the Seller shall take all necessary action to maintain all of its Fannie Mae Approvals at all times during the term of this Agreement. | 5Approvals
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At any time and from time to time, upon the reasonable request of a Party hereto, each other Party hereto shall promptly execute and deliver all such further agreements, documents, and instruments and take such further action as may be necessary or appropriate to carry out the provisions and purposes of this Agreement or any other agreement executed in connection herewith. | 45Further Assurances
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Executive’s employment with the Company is at-will and shall be governed by the terms of this Agreement, commencing on June 1, 2017 and continuing for one (1) year (the “ Term ”), unless this Agreement is terminated at some earlier time in accordance with the terms of this Agreement. | 89Terms
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This Agreement may not be amended or modified other than by a written instrument signed by an authorized representative of the Company and Officer. | 2Amendments
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Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, or by overnight air courier guaranteeing next day delivery, to each Holder affected by such event, at such Holder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. | 97Waivers
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The proceeds of the Loans and the Letters of Credit shall be used for general corporate purposes of MVWC, the Borrower and its Subsidiaries. | 92Use Of Proceeds
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Subject to Section 15, no provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Energen. No waiver by either party hereto at any time of any breach by the 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 agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama. | 59Miscellaneous
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The terms of this Plan and Awards granted pursuant to the Plan are subject to all present and future regulations and rulings of the Secretary of the Treasury relating to the qualification of Incentive Stock Options under the Code or compliance with Code section 162(m), to the extent applicable, and they are subject to all present and future rulings of the Securities and Exchange Commission with respect to Rule 16b-3. If any provision of the Plan or an Award conflicts with any such regulation or ruling, to the extent applicable, the Committee shall cause the Plan to be amended, and shall modify the Award, so as to comply, or if for any reason amendments cannot be made, that provision of the Plan and/or the Award shall be void and of no effect. | 55Interpretations
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This Agreement and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof and they supersede, merge, and render void every other prior written and/or oral understanding or agreement among or between the parties hereto. | 38Entire Agreements
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Except as may be provided in a change in control agreement that is in effect for a Covered Executive at the time of a Change in Control between the Company and a Covered Executive, this Plan document, as it may be amended by the Committee, and the documents specifically referenced herein, or in such amendment, shall constitute the entire agreement between the Company and the Covered Executive with respect to the Benefits promised hereunder and no other agreements, representations, oral or otherwise, express or implied, with respect to such Benefits or any severance benefits shall be binding on the Company; provided that the Employment Agreement entered as of 17 June 2014 between Air Products and Mr. Ghasemi shall remain effective and shall control to the extent treatment under such agreement is more favorable to Mr. Ghasemi than under the Plan. | 38Entire Agreements
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This Option Agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to the principles of conflict of laws. | 47Governing Laws
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Manager will invoice Partnership from time to time, as determined by Manager in its sole discretion, including, without limitation, advance requests for the current month’s estimated costs, fees, and expenses, as determined by Manager in its sole discretion. Any over or under payments will be reconciled in subsequent invoices with appropriate credits or deductions, as applicable. Partnership shall pay invoiced amounts promptly, and in any event within 30 days, after the receipt of each such invoice. Notwithstanding the foregoing or anything else in this Agreement to the contrary, Manager may elect to retain proceeds that it receives on behalf of Partnership to the extent it would otherwise invoice Partnership for such amounts and in such event it shall show any such retained amounts as a credit on such invoice. Failure by Manager to submit an invoice for any amounts due hereunder shall not relieve Partnership of its payment obligations under this Agreement when due hereunder. | 68Payments
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Executive shall be reimbursed for his/her reasonable business expenses, subject to the presentation of evidence that such expenses are made in accordance with established policies adopted by Employer from time to time. | 41Expenses
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The terms of this Agreement may not be changed, amended or waived except by another written document signed by all parties. | 2Amendments
|
All notices, demands, or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (i) delivered personally to the recipient, (ii) telecopied to the recipient (with a hard copy sent to the recipient by reputable overnight courier service (charges prepaid)) if telecopied before 5:00 p.m. Eastern Standard Time on a business day, and otherwise on the next business day, (iii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) received via electronic mail by the recipient if received via electronic mail before 5:00 p.m. Eastern Standard Time on a business day, and otherwise on the next business day after such receipt. Such notices, demands and other communications shall be sent to the address for such recipient indicated below or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. | 65Notices
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Subject to Article 5 hereof, the Parent and its Restricted Subsidiaries shall (i) do or cause to be done all things necessary to preserve and keep in full force and effect the corporate existence of Parent, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational or constitutional documents (as the same may be amended or replaced from time to time) of the Parent or any such Restricted Subsidiary; (ii) do or cause to be done all things necessary to preserve and keep in full force and effect to preserve, renew, extend, keep in full force and effect the rights (charter and statutory), privileges, permits, franchises, authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary or desirable in the normal conduct of its business of Parent and its Restricted Subsidiaries; provided that the Parent shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries (other than the Issuer and the Co-Issuer), if the Parent in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Parent and its Restricted Subsidiaries, taken as a whole; and (iii) in accordance with the Bankruptcy Code and subject to any required approval by the Bankruptcy Court, comply with all contractual obligations except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. For the avoidance of doubt, the Parent and its Restricted Subsidiaries shall be permitted to change their organizational form; provided that so long as the Issuer is organized as a partnership or a limited liability company, it will maintain a corporate co-issuer of the Notes that is organized under the laws of the United States of America, any state thereof, the District of Columbia or any territory thereof. | 40Existence
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The Company may acquire insurance on the life of one or more Participants. The Company will be the owner and beneficiary of the policy(ies). The Participant will have no interest in or right to any policy purchased by the Company. | 51Insurances
|
Each person signing this Agreement as a party or on behalf of a party represents that he or she is duly authorized to sign this Agreement on such party's behalf, and is executing this Agreement voluntarily, knowingly, and without any duress or coercion. | 10Authorizations
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The Administrative Agent shall have received all fees due and payable thereto or to the Arranger or any Lender on or prior to the Second Amendment Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to the Commitment Letter dated as of February 21, 2017 (the “ Commitment Letter ”) or the Fee Letter dated as of February 21, 2017 on or prior to the Second Amendment Effective Date. | 42Fees
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This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement; provided , that unpaid accrued payment obligations arising under any prior version of this Agreement shall not be affected by this Agreement. As of the date hereof, there are no understandings between the parties with respect to the subject matter of this Agreement other than as expressed herein or as set forth in (i) that certain Investment Management Agreement, dated as of October 31, 2012, by and between AAM and AHL (the “ AAM/AHL Investment Management Agreement ”) and (ii) that certain Applicable 2016 Liability Fee Discount, dated as of September 30, 2016, by and between AHL and AAM. | 38Entire Agreements
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The Buyer has filed all SEC Filings required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twenty-four months preceding the date hereof. Since January 1, 2015, the SEC Filings have complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Filings, when filed, 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. The financial statements of the Buyer included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Buyer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. | 43Financial Statements
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THIS AMENDMENT IS A LOAN DOCUMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS, AS AMENDED, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. | 38Entire Agreements
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Set forth on Schedule 4.01(b) to the Disclosure Letter is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation, the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party. As of the date hereof, there are no outstanding options, warrants, rights of conversion or purchase and similar rights with respect to the shares of any Subsidiary of any Loan Party. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries has been validly issued, are fully paid and non-assessable and to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens. | 83Subsidiaries
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The Parent, the Borrower and each Subsidiary maintains with financially sound and reputable insurance companies insurance on all their property in such amounts and covering such risks as is consistent with sound business practice. | 51Insurances
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Employer shall reimburse Executive for his reasonable expenses (including, without limitation, travel, entertainment, and similar expenses) incurred in performing and promoting the business of Employer. Executive shall present from time to time itemized accounts and receipts of any such expenses as required by Employer, subject to any limits of company policy and the rules and regulations of the Internal Revenue Service, including the Internal Revenue Code, (referred to throughout this Agreement as “IRC” or the “Code”). | 41Expenses
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Unless otherwise provided in this Agreement or the Warrant, each of the parties hereto will bear and pay all costs and expenses incurred by it or on its behalf in connection with the transactions contemplated under this Agreement and the Warrant, including fees and expenses of its own financial or other consultants, investment bankers, accountants and counsel. | 41Expenses
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No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened in writing by or against any Group Member or against any of their respective properties or revenues that would reasonably be expected to have a Material Adverse Effect (taking into account reserves made or the benefit of warranties, indemnities or insurance coverage in respect thereof). | 58Litigations
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Except as disclosed in the SEC Reports and the Data Room, there is no 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) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents, the Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. | 58Litigations
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The validity and effect of this Plan and the rights and obligations of all persons affected hereby shall be construed and determined in accordance with the laws of the State of Texas unless superseded by federal law. | 47Governing Laws
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All of the terms and provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. No Person other than Borrower or Lender shall be entitled to rely upon this Agreement or be entitled to the benefits of this Agreement. | 12Benefits
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Each Collateral Agent, on behalf of itself and each First Lien Secured Party under the Indenture or any Additional First Lien Debt Facility, as applicable, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement. | 45Further Assurances
|
No Obligor shall acquire or accept any Inventory on consignment or approval, and each Obligor shall take all steps to assure that all Inventory is produced in accordance with Applicable Law, including the FLSA. Except to the extent permitted by Section 10.2.5(b) in the case of consignments, no Obligor shall sell any Inventory on consignment or approval or any other basis under which the customer may return or require an Obligor to repurchase such Inventory. Each Obligor shall use, store and maintain all Inventory with reasonable care and caution, in accordance with applicable standards of any insurance and in conformity with all Applicable Law, and, except in cases of good faith disputes, shall make current rent payments (within applicable grace and cure periods provided for in leases) at all locations where any Collateral is located. | 77Sales
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This trust shall not terminate, and all rights, titles, powers, duties, discretions and immunities imposed on or reserved to the trustee, the administrator, the grantor and the beneficiaries shall continue in effect, until all assets of the trust have been distributed by the trustee as provided in Article II. | 88Terminations
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This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein. The Parties acknowledge and agree that the Original Agreements shall be terminated as of the Effective Date of this Agreement, except that (a) such termination shall not affect Owner’s obligations to pay to Service Provider amounts due under the Original Agreements that are unpaid and (b) the rights and obligations of the Parties under Article III of the Original Services Agreement shall survive such termination and shall remain in full force and effect. | 38Entire Agreements
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All fees required to be paid on the Closing Date pursuant to this Agreement and the reasonable legal fees of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Lenders, related to the Loan Documents shall, upon the making of the Secured Term Loans, have been paid, which amounts may be offset against the proceeds of the Secured Term Loans. | 42Fees
|
Assignor hereby transfers, assigns and sets over to Assignee all of its right, title and interest in and to the Leases from and after the Effective Date. | 7Assignments
|
Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). | 20Confidentiality
|
No amendment or waiver of any provision of this Guarantee will be valid and binding unless it is in writing and signed by the Guarantors and the Beneficiaries. No failure on the part of the Beneficiaries to exercise, or delay in exercising, any right, remedy or power hereunder, whether intentional or not, shall operate as a waiver thereof, nor shall any single or partial exercise by the Beneficiaries of any such right, remedy or power preclude any other or future exercise by the Beneficiaries thereof. Each and every right, remedy and power hereby granted to the Beneficiaries or allowed to them by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Beneficiaries. | 63No Waivers
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This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement. This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns or to otherwise create any third-party beneficiary hereto. This Agreement shall not be effective unless and until (i) the Company Board of Directors has voted to approve the Merger Agreement, (ii) the Merger Agreement is executed by all the parties thereto, and (iii) this Agreement is executed by all the parties hereto. | 38Entire Agreements
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As of the Closing Date and after giving effect to any Loans made on the Closing Date, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent. | 80Solvency
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