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EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY OF THE TRANSACTION DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. | 96Waiver Of Jury Trials
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Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (a) each Group Member and each of their respective ERISA Affiliates is in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder; (b) no ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur; and (c) all amounts required by applicable law with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by any Group Member or any ERISA Affiliate or to which any Group Member or any ERISA Affiliate has an obligation to contribute have been accrued in accordance with Statement of Financial Accounting Standards No. 106. The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification No. 715: Compensation-Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than an immaterial amount the fair market value of the assets of such Pension Plan allocable to such accrued benefits, and the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for purposes of Accounting Standards Codification No. 715: Compensation-Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than an immaterial amount the fair market value of the assets of all such underfunded Pension Plans. | 39Erisa
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The capitalization of the Company is as set forth in its public filings with the U.S. Securities and Exchange Commission from time to time. | 16Capitalization
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The Company and the Company Entities have operated in accordance with all applicable Laws with respect to employment and labour in all material respects, including employment and labour standards, occupational health and safety, employment equity, pay equity, workers’ compensation, human rights, labour relations and privacy, and there are no current, pending or, to the knowledge of the Company, threatened Proceedings by or before any Governmental Authority with respect to any such matters, except where the failure to so operate would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect on the Company. | 35Employment
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All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into this Agreement, and to issue the Securities at the Closing, has been taken or will be taken prior to the Closing. All action on the part of the officers of the Company necessary for the execution and delivery of this Agreement, the performance of all obligations of the Company under this Agreement to be performed as of the Closing, and the issuance and delivery of the Securities has been taken or will be taken prior to the Closing. This Agreement, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. | 10Authorizations
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Buyer shall not transfer, convey or assign all or any part of this Agreement without the approval of Seller, which approval may be withheld in the Seller's sole and absolute discretion. Notwithstanding the foregoing, Buyer shall have the right to assign this Agreement to one or more entities that are, directly or indirectly, owned or controlled by the owners of Buyer, or their affiliated entities, without Seller's prior consent. Buyer shall notify Seller of any such assignment at least five Business Days in advance of the Closing. | 7Assignments
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All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted for by the party addressee, on the date of such receipt, (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third business day after the date postmarked, or (iii) mailed by reputable overnight courier and receipted for by the party addressee, on the date of such receipt. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by written notice . | 65Notices
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The undersigned hereby joins in, and agrees to be bound by, subject to, and enjoy the benefit of the applicable rights set forth in, the Agreement (including the Exhibits thereto), as amended from time to time, with the same force and effect as if it were originally a party thereto. | 1Agreements
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With the consent of the Lenders providing an Incremental Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) (the “Incremental Amendment”) to reflect any changes necessary to give effect to such Incremental Facility in accordance with its terms (including, without limitation, to give such Incremental Facility the benefits of Section 2.05, as applicable). Each Incremental Facility shall be effected pursuant to an Incremental Amendment, which shall be recorded in the Register, and each Incremental Lender providing such Incremental Facility shall be subject to the requirements set forth in Section 3.01(e). The Incremental Amendment with respect to an Incremental Revolving Facility may include, among other things, customary provisions regarding (i) Letters of Credit and reimbursement obligations with respect thereto, (ii) cash collateral obligations with respect to Letters of Credit, (iii) swing line loans and participations therein, and (iv) Incremental Revolving Lenders that are Defaulting Lenders. In connection with any Incremental Amendment, the Borrower shall deliver or cause to be delivered within the time period requested by the Administrative Agent, any legal opinions, mortgage modifications, amendments to Security Documents or other documents, in each case, as reasonably requested by the Administrative Agent in connection with such transaction. | 2Amendments
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EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION BETWEEN THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT. | 96Waiver Of Jury Trials
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Payment of any fees due to Administrative Agent and Buyers hereunder, including the Up-Front Fee. | 42Fees
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Borrower acknowledges and agrees that all applicable notice and cure periods, if any, with respect to the Existing Default have lapsed, and the Existing Default currently constitutes an Event of Default. Subject to Borrower’s and each Guarantor’s compliance with the terms and conditions of this Amendment and the other Loan Documents, including without limitation the complete satisfaction of the conditions precedent set forth in this Amendment, Bank hereby waives the Existing Default. Except for the waiver expressly set forth in this Section 2.2 , nothing contained herein shall otherwise be deemed a consent to any violation of, or a waiver of compliance with, any term, provision, or condition set forth in any of the Loan Documents or a consent to or waiver of any other or future violations, breaches, Defaults, or Events of Default. The waiver set forth above in this Section 2.2 is made only with respect to Section 4.9(b) of the Credit Agreement for the fiscal quarter ending June 30, 2017, and said waiver shall not apply to any other provisions or measurement periods. | 97Waivers
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The Borrower has furnished to each Lender copies of (i) the audited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal years ended December 31, 2015 and December 31, 2016, and the related consolidated statements of operations, shareholders’ equity and cash flow for the fiscal years ended on such dates, with the opinion thereon of Deloitte & Touche, and (ii) the unaudited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal quarter ended March 31, 2017, and the related consolidated statements of operations, shareholders’ equity and cash flow of the Parent and its consolidated Subsidiaries for the three (3) fiscal quarters ended on such date. Such balance sheets and statements (including in each case related schedules and notes) are complete and correct in all material respects and present fairly, in accordance with GAAP consistently applied throughout the periods involved, the consolidated financial position of the Borrower and its consolidated Subsidiaries as of their respective dates and the results of operations and the cash flow for such periods (subject, as to interim statements, to changes resulting from normal year-end audit adjustments). Neither the Parent, the Borrower nor any consolidated Subsidiary has on the Agreement Date any material contingent liabilities, liabilities, liabilities for taxes, unusual or long-term commitments or unrealized or forward anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said financial statements. | 43Financial Statements
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The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof. | 48Headings
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Unless otherwise defined or expressly given a different meaning in this Agreement, each capitalized term in this Agreement shall have the meaning given to it in The Progressive Corporation 2015 Equity Incentive Plan (the “Plan”). Financial and operational terms used in this Agreement (e.g., references to business units or segments) are used consistently with the use of those terms in the Company’s Form 10-K (including exhibits and other documents incorporated therein) for the fiscal year ended December 31, 2016 (the “Form 10-K”). It is understood that references herein to any performance results of the Company mean the applicable operating results of the Company and its Subsidiaries and Affiliates. | 29Definitions
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As of the date hereof, the authorized capital stock of the Company consists of: (i) 12,000,000,000 authorized shares of Common Stock, $0.0001 par value per share, of which 3,285,728,744 shares are issued and outstanding; and (ii) 100,000,000 authorized shares of Preferred Stock of which 50,000,000 of Series A Preferred Stock are issued and outstanding; 16,078,901 shares of Series B Convertible Preferred Stock are outstanding (of which 467,520 are eligible for conversion); and 939,890,710 shares are reserved by the Company’s board of directors for issuance upon conversion of the Note. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. The Company has furnished to the Buyer true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as of the Closing Date. | 16Capitalization
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If approved by Intrepid in writing in advance, Intrepid will reimburse Consultant for reasonable, actual, and necessary travel, living, and out-of-pocket expenses, if any, incurred by Consultant in the performance of the Services. | 41Expenses
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Seller Parent reserves the right to charge interest on any amount which has been due from Purchaser under this Agreement for more than thirty (30) days, at an annual interest rate of five percent (5%), accruing from the date payment was due through the date of actual payment. | 54Interests
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All amounts due under this Section 11.3 [Expenses; Indemnity; Damage; Waiver] shall be payable not later than ten (10) days after demand therefor. | 68Payments
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All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be provided as set forth in Section 15.13 of the Plan. | 65Notices
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Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules (in the case of the Designated Holder, in accordance with the CDA). N otwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. 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 covenant 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. | 20Confidentiality
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All notices, requests and demands to or upon the 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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Company shall indemnify Executive in accordance with its policies and practices and to the full extent permitted by the general laws of the State of Delaware, now or hereafter in force, including the advance of expenses under procedures provided by such laws. Further, Company shall insure Executive is covered by its D&O insurance policy to the same extent as any other Director or Officer, as applicable. | 49Indemnifications
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Notwithstanding anything in this Agreement to the contrary, but subject to Appendix B, which could negate the treatment provided by this Section 5(a) as a result of Section 280G of the Code, in the event of a Defined Termination of a Participant before the Vesting Date, the Participant’s Option shall immediately vest and become exercisable on the date of the Defined Termination for a number of shares based on either (i) the degree of performance under Section 1(c) attained as of the date of the Defined Termination, and/or (ii) the portion of the performance period under Section 1(c) elapsed as of the date of the Defined Termination, as determined by the Committee, and the Participant’s Option shall no longer be subject to the vesting conditions set forth in Section 1(b) or Section 1(c). | 95Vesting
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The Plan shall take effect upon its adoption by the Board; provided, however, that the Plan shall be subject to the requisite approval of the shareholders of the Company in order to comply with Section 162(m) of the Code. In the absence of such approval, the Plan (and any Awards made pursuant to the Plan prior to the date of such approval) shall be null and void. | 33Effective Dates
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All corporate action on the part of each of the Company and Trebor, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement and the Shares, the performance of all obligations of the Company hereunder and thereunder and the authorization, issuance and delivery of the Shares has been taken, and this Agreement has been duly executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms. | 10Authorizations
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To the extent allowable under applicable law, each member of the Committee shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which such member may be a party or in which he may be involved by reason of any action or failure to act under the Plan and against and from any and all amounts paid by such member in satisfaction of judgment in such action, suit, or proceeding against him provided he gives the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. | 49Indemnifications
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From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take such actions, as the Administrative Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents. Upon the exercise by the Administrative Agent or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental Authority, the Borrowers will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the Administrative Agent or such Lender may be required to obtain from any Loan Party for such governmental consent, approval, recording, qualification or authorization. | 45Further Assurances
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The parties to each assignment shall deliver to the Issuer (A) a duly executed Assignment and Assumption, together with any Note subject to such assignment, (B) unless the assignee is already a Purchaser, a designation of one or more contacts to whom all Note information (which may contain material non-public information about the Issuer and its Subsidiaries and their Related Parties or their securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable law, Federal, state and foreign securities laws and (C) the documents required under Section 2.17(f) , and the Issuer shall record such assignment in the Register. | 7Assignments
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The Borrower will not, and will not permit any of the Subsidiaries to, sell, lease or otherwise transfer any material property or assets to, or purchase, lease or otherwise acquire any material property or assets from, or otherwise engage in any other material transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and the Subsidiaries, or between or among Subsidiaries, in each case not involving any other Affiliate, (c) the declaration and payment of dividends with respect to its Equity Interests, (d) the making of grants or payments pursuant to and in accordance with equity award, bonus or incentive plans or other benefit plans for management, directors or employees of the Borrower and the Subsidiaries, (e) the transactions set forth on Schedule 6.06 and (f) employment agreements, officer and director indemnification agreements, confidentiality agreements, non-compete agreements and similar arrangements entered into by the Borrower or any of the Subsidiaries with its officers, directors and employees. | 91Transactions With Affiliates
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Except for limitations on assignment set forth in Section 6.1, this Plan will be binding upon and inure to the benefit of the Company and each Eligible Employee and their respective successors, assigns, heirs, executors, and administrators. | 84Successors
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The validity, construction, interpretation and effect of this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the conflicts of laws provisions thereof. | 4Applicable Laws
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All financial statements relating to Borrower, any Subsidiary or any Affiliate that have been delivered by Borrower to Collateral Agent or Lender present fairly in all material respects Borrower’s Consolidated financial condition as of the date thereof and Borrower’s Consolidated results of operations for the period then ended. | 43Financial Statements
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This In connection with this Agreement and all transactions contemplated by this Agreement, each signatory Party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions. | 45Further Assurances
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As between the Pari Passu Secured Parties, the Controlling Collateral Agent (acting at the direction of the Applicable Authorized Representative) shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation, expropriation or similar proceeding affecting the Shared Collateral. | 51Insurances
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Other than resulting from the IDA Documents or the disposition of assets in connection with the incurrence of Capital Lease Obligations and purchase money Indebtedness permitted pursuant to Section 6.01( j) with respect to such assets, the Borrower shall not, and it shall not permit any other Loan Party to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Loan Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of the other Loan Parties), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Loan Party to any Person (other than the Borrower or any of the other Loan Parties) in connection with such lease. | 77Sales
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Borrower will from time to time execute and deliver to Bank such documents, and take or cause to be taken, all such other or further action, as Bank may request in order to effect and confirm or vest more securely in Bank all rights contemplated by this Agreement and the other Loan Documents (including, without limitation, to correct clerical errors) or to comply with applicable statute or law. | 45Further Assurances
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Except as expressly provided herein, neither Party may, without the prior written consent of the other Party, sell, transfer, assign, delegate, pledge, subcontract or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any of its rights or duties hereunder; provided, however, that (a) Edge may, without such consent, assign this Agreement and its rights and obligations hereunder to a licensee of Edge’s right and interest in the Product and (b) either Party may, without such consent (i) assign this Agreement and its rights and obligations hereunder to an Affiliate or to the transferee of all or substantially all of such Party’s assets to which this Agreement relates, or to any successor entity or acquirer in the event of a merger, consolidation or change in control of such Party or (ii) pledge this Agreement and its rights hereunder in connection with any financing transaction. Any attempt to assign, transfer, subcontract or delegate any portion of this Agreement in violation of this Section 10.9 shall be null and void. All validly assigned and delegated rights and obligations of the Parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns of Edge or Oakwood, as the case may be. If either Party assigns or delegates its rights or obligations to another Person in accordance with the terms hereof, the assignee or transferee shall assume all obligations of its assignor or transferor under this Agreement and the assignor or transferor shall cease to be a Party to this Agreement and shall cease to have any rights or obligations under this Agreement from and after the effective date of such assignment. If the Development Agreement is assigned to any Affiliate of the assigning Party or to any Third Party pursuant to the terms thereof, the assigning Party also shall assign this Agreement to such Affiliate or Third Party unless such assigning Party obtains the prior written consent of the other Party; provided, however, that if the assigning Party seeks to assign this Agreement to an Affiliate other than the Affiliate to which the Development Agreement is assigned, such other Party shall not unreasonably withhold, condition or delay such consent. | 7Assignments
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During the Employment Term, the Executive shall serve as the Chief Technology Officer of the Company, reporting to the Chief Operating Officer of the Company (the “ Supervisor ”). In such position, the Executive shall have such duties, authority and responsibility as shall be determined from time to time by Supervisor of the Company, which duties, authority and responsibility are consistent with the Executive's position. The Company will also take action to immediately have the formal appointment of Executive to the Board of Directors (the “ Board ”) within fourteen (14) days of the execution of this Agreement. The Company shall take all proper and legal actions to have Executive elected and remain a member of the Board during the Employment Term, subject to state and federal law and the bylaws of the Company, during the Employment Term. At any time that the Executive elects not to serve on the Board, then the Executive’s right to a full voting seat on the Board will no longer exist and instead will be subject to the determination of the Board. | 69Positions
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This Lease and its performance shall be governed by the laws of the State of Oklahoma , without regard to any conflicts of laws of choice of law provisions thereof. The parties agree that any court action relating to this Lease shall be instituted and prosecuted only in a court of competent jurisdiction in Oklahoma County, Oklahoma , and each party waives its rights, if any, to institute or prosecute suit in any other forum than Oklahoma County, Oklahoma . | 94Venues
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From and after the Termination date, Executive agrees not to make any statements to the Company’s employees, customers, vendors, or suppliers or to any public or media source, whether written or oral, regarding Executive’s employment hereunder or termination from the Company’s employment, except as may be approved in writing by an executive officer of the Company in advance. Executive further agrees not to make any statement (including to any media source, or to the Company’s suppliers, customers or employees) or take any action that would disrupt, impair, embarrass, harm or affect adversely the Company or any of the employees, officers, directors, or customers of the Company or place the Company or such individuals in any negative light. | 64Non-Disparagement
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The Administrative Agent shall have received the Pro Forma Financial Statements. | 43Financial Statements
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The Company and the Subsidiaries own or possess adequate enforceable rights to use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the " Intellectual Property "), necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and the Subsidiaries have not received any written notice of any claim of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse Effect; there are no pending, or to the Company's knowledge, threatened judicial proceedings or interference proceedings against the Company or its Subsidiaries challenging the Company's or any of its Subsidiary's rights in or to or the validity of the scope of any of the Company's or any Subsidiary's patents, patent applications or proprietary information; no other entity or individual has any right or claim in any of the Company's or any of its Subsidiary's patents, patent applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or any Subsidiary or by any non-contractual obligation, other than by written licenses granted by the Company or any Subsidiary; the Company and the Subsidiaries have not received any written notice of any claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual Property owned, licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable decision would reasonably be expected to result in a Material Adverse Effect. | 53Intellectual Property
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Purchasers acknowledge and agree that they have not been induced by and have not relied on any representations, warranties or statements, whether express or implied, made by Shareholder or any Seller or any of their representatives, Affiliates, or agents that are not expressly set forth in this Agreement, whether or not any of those representations, warranties or statements were made in writing or orally. | 98Warranties
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In consideration of Executive's performance of the responsibilities and duties set forth in Section 1, the Bank will provide Executive the compensation specified in this Agreement. The Bank will pay Executive a salary of $237,600 for the term of this Agreement ("Base Salary") . Such Base Salary will be payable in accordance with the customary payroll practices of the Bank. | 11Base Salary
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Schedule 2.2(f) of the Company Disclosure Schedule lists all governmental and any other material consents, approvals, authorizations, applications, registrations and qualifications that are required to be obtained in connection with or for the consummation of the transactions contemplated by this Agreement (the " Required Approvals" ), including the approval of the persons listed on Schedule 2.2(f) of the Purchaser Disclosure Schedule (the " SLHC Parties" ) as savings and loan holding companies and an application to the Office of Thrift Supervision (" OTS" ) by the persons listed in Schedule F hereto (such listed persons, including the SLHC Parties, the " Applicants" ) and the written determination by each of the FDIC and the OTS that neither MatlinPatterson nor any fund sponsored or advised by it or their Affiliates (other than the Applicants) will control the Company or the Bank or be an "institution affiliated party" (as defined in 12 USC Section 1813(u)) with respect thereto in connection with the structure outlined in Schedule 2.2(f) of the Purchaser Disclosure Schedule. Other than the securities or blue sky laws of the various states and the Required Approvals, no material notice to, registration, declaration or filing with, exemption or review by, or authorization, order, consent or approval of, any Governmental Entity, or expiration or termination of any statutory waiting period, is necessary for the consummation by the Company of the transactions contemplated by this Agreement; no person other than each of the Applicants is required to obtain any Required Approval or other consent or approval from any Governmental Entity in connection with the transactions contemplated by this Agreement and no person other than each of the SLHC Parties is required to be registered as a savings and loan holding company in order to consummate the transactions contemplated by this Agreement. | 22Consents
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Notwithstanding anything else to the contrary, a Participant’s benefits under this Plan shall be forfeited in the event that a Participant is terminated for Cause. Further, if at any time following the Separation from Service or the commencement of benefits under this Plan, the Company learns that the Participant engaged in conduct that would have constituted Cause had it been known by the Company prior to such Separation from Service or commencement of benefits, then any unpaid benefit under this Plan shall be forfeited and the Company will have no further liability to the Participant under this Plan. | 44Forfeitures
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The Company confirms that neither it nor any person acting on its behalf has provided the Member or its respective agents or counsel with any information that the Company believes constitutes material, non-public information, except insofar as the existence and terms of the proposed transactions hereunder may constitute such information and except for information that will be disclosed by the Parent under a current report on Form 8-K filed no later than four (4) business days after the Closing. The Company understands and confirms that the Parent will rely on the foregoing representations and covenants in effecting transactions in securities of the Parent. All disclosure provided to the Parent regarding the Company, its business and the Transactions, furnished by or on behalf of the Company (including the Company’s representations and warranties set forth in this Agreement) are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. | 31Disclosures
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The Seller has complied with the Applicable Requirements with respect to the Mortgage Loans in all material respects, including, without limitation, the federal Fair Housing Act, federal Equal Credit Opportunity Act and Regulation B, federal Fair Credit Reporting Act, federal Truth in Lending Act and Regulation Z, National Flood Insurance Act of 1968, federal Flood Disaster Protection Act of 1973, federal Real Estate Settlement Procedures Act and Regulation X, federal Fair Debt Collection Practices Act, federal Home Mortgage Disclosure Act, federal Homeowners Protection Act of 1998, and state consumer credit and usury codes and laws in all material respects. The Seller has, at all times during which it has been the Servicer of the Mortgage Loans, been (1) in compliance with any and all applicable licensing requirements of the laws of the jurisdiction and state wherein the related Mortgaged Property is located and had all requisite licenses, permits and approvals required in such jurisdiction, and (2) either (A) organized under the laws of such state, (B) qualified to do business in such state, (C) federal savings and loan associations or national banks having principal offices in such state, or (D) not doing business in such state; except where the failure to be so qualified or in compliance or to possess such licenses, permits and approvals would not be reasonably likely to have a Material Adverse Effect . | 19Compliance With Laws
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From time to time, as and when requested by any Party, each Party shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions, as such other party may reasonably deem necessary or desirable to consummate the transactions contemplated by Section 10.8 , including, in the case of Seller, executing and delivering to Buyer such assignments, deeds, bills of sale, consents and other instruments as Buyer or its counsel may reasonably request as necessary or desirable for such purpose. | 45Further Assurances
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For value received , Maker promises to pay to Holder at 5940 S. Rainbow Blvd., Las Vegas, NV 89118 , or at such other place as Holder may designate in writing, in currently available funds of the United States, the principal amount of Five Hundred Twenty-Five ( USD) . Maker’s obligation under this Note shall accrue simple interest at the rate of Twelve Percent (12.0%) per year from the date hereof until paid in full. Interest shall be computed on the basis of a 365-day year or 366-day year, as applicable, and actual days lapsed. | 54Interests
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Each of the Parties to this Agreement hereby waives any right to a jury trial with respect to any claim, action, suit or proceeding made or brought by one of the Parties against the other in connection with or arising under this Agreement. | 96Waiver Of Jury Trials
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EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9 . | 96Waiver Of Jury Trials
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The ABL Collateral Agent, on behalf of itself and each other ABL Claimholder under the ABL Loan Documents, and the Term Loan Collateral Agent, on behalf of itself and each other Term Loan Claimholder under the Term Loan Documents, and each ABL Grantor, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the ABL Collateral Agent or the Term Loan Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities in respect of the ABL Priority Collateral contemplated by this Agreement. | 45Further Assurances
|
Subject to Exhibit A of this Agreement, you agree that you will not disclose this Agreement or any of its terms or provisions, directly or by implication, except to members of your immediate family and to your legal and tax advisors, and then only on condition that they agree not to further disclose this Agreement or any of its terms or provision s to others. | 20Confidentiality
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The Deferred Stock Units granted pursuant to this Agreement are 100% vested as of the Award Date. | 95Vesting
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Section 4.5 of the Disclosure Schedule contains true and complete copies of (i) the unaudited balance sheet of the Company as of December 31, 2015 and the related unaudited statements of income, stockholders’ equity and cash flows for the two years ended December 31, 2015 and December 31, 2014 (the “ Annual Financial Statements ”) and (ii) the unaudited balance sheet of the Company as of September 30, 2016 and the related statements of income, stockholders’ equity and cash flows for the nine-month period ended September 30, 2016 (the “ Interim Financial Statements ” and, together with the Annual Financial Statements, the “ Financial Statements ”). Except as set forth in Section 4.5 of the Disclosure Schedule , the Financial Statements have been prepared in accordance with accounting principles of Company applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and, on that basis, fairly present, in all material respects, the financial condition and results of operations of the Company as of the indicated dates and for the indicated periods (subject to normal year-end adjustments and the absence of notes), excepting as set forth in Buyer’s quality of earnings report that has been prepared. Section 4.5 of the Disclosure Schedule indicates the material differences between the Company’s accounting principles and GAAP. | 43Financial Statements
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This Warrant Certificate shall be governed by, and construed in accordance with, the internal laws of the State of New Jersey, without reference to the conflicts of laws provisions thereof. | 47Governing Laws
|
The Servicer will use reasonable efforts to collect all payments due under each Lease in the 2017-B Reference Pool. The Servicer may waive late payment charges or other fees that may be collected in the ordinary course of servicing a Lease. The Servicer may grant extensions, refunds, rebates or adjustments on a Lease or amend a Lease according to the Servicing Procedures. However, if the Servicer (a) grants a Payment Extension or Term Extension on a Lease in the 2017-B Reference Pool resulting in the final payment date of the Lease being later than the Final Scheduled Payment Date of the most junior Class of Notes issued by the Issuer or (b) modifies the amount of the Base Payment due on a Lease, it will reallocate the Lease and the related Leased Vehicle to the Revolving Facility Pool under Section 3.3, unless it is required to take the action by law or court order. | 2Amendments
|
Each of the parties to this Agreement shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and to give effect to the transactions contemplated hereby. | 45Further Assurances
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On the Closing Date (after giving effect to the Transactions on a Pro Forma Basis, which Transactions shall be deemed to be a “Specified Transaction” for such purposes), immediately following the making of each Loan and after giving effect to the application of the proceeds of such Loans, the Borrower on a consolidated basis with its Subsidiaries will be Solvent. | 80Solvency
|
The period of employment of the Executive by Employer shall commence upon the Effective Date and, subject to earlier termination as provided in this Agreement, continue thereafter for a one (1)-year term (the “ Term ”); provided , that the Term shall automatically renew for additional one (1)-year periods thereafter unless either Employer or Executive gives notice of non-renewal at least ninety (90) days prior to expiration of the Term (as it may have been extended by any renewal period). | 89Terms
|
The agreements in the first sentence of Section 2.10(a) , in Article III , in the penultimate sentence of Section 10.02(d) , in this Section 10.04 and in Section 10.05 shall survive the repayment of all Obligations under the Loan Documents. | 85Survival
|
Other than with respect to Taxes, which shall be governed solely by Section 2.20, the Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense (other than lost profits, including the loss of Applicable Margin) that such Lender actually sustains or incurs as a consequence of (a) any failure by the Borrower in making a borrowing of, conversion into or continuation of Eurocurrency Loans after the Borrower has given notice requesting the same in accordance with the provisions of this Agreement, (b) any failure by the Borrower in making any prepayment of or conversion from Eurocurrency Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment, conversion or continuation of Eurocurrency Loans on a day that is not the last day of an Interest Period with respect thereto. A reasonably detailed certificate as to (showing in reasonable detail the calculation of) any amounts payable pursuant to this Section 2.21 submitted to the Borrower by any Lender shall be presumptively correct in the absence of demonstrable error. This covenant shall survive the termination of this Agreement and the payment of the Obligations. | 50Indemnity
|
Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“ Tax-Related Items ”), the ultimate liability for all Tax-Related Items is and remains the Director’s responsibility and the Company: (a) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting, or exercise of the Option or the subsequent sale of any shares acquired on exercise; and (b) does not commit to structure the Option to reduce or eliminate the Director’s liability for Tax-Related Items. | 99Withholdings
|
Paragraph 12(a) of the Lease is hereby amended to provide that Lessee shall, at Lessee’s sole cost and expense, provide and keep in force the insurance policies described in Paragraph 12 commencing as of December 31, 2016. In addition, the requirement of Lessee to provide property insurance in clause (ii) of Paragraph 12(a) is hereby amended to require Lessee to provide such property insurance as to alterations by Lessee in the Premises and as to alterations made by Lessor in the Premises after the Substantial Completion Date. | 51Insurances
|
You further agree that, except as may be required by applicable law, you shall not make any statement, written or verbal, in any forum or media, or take any other action in disparagement of the Company or its subsidiaries or affiliates or their respective past or present products, services, officers, directors, employees or agents. Nothing in this paragraph shall preclude you from providing truthful testimony or other evidence or documents in connection with (i) any action to enforce your rights hereunder or under any other agreement between you and the Company or (ii) in response to any judicial or administrative subpoena, or from otherwise participating in any investigation or inquiry being conducted by a judicial or administrative body having competent jurisdiction. | 64Non-Disparagement
|
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof. | 31Disclosures
|
(a) Neither Landlord, any Superior Lessor or any Superior Mortgagee, nor any partner, director, officer, shareholder, principal, board member, agent or employee of Landlord, any Superior Lessor or any Superior Mortgagee (whether disclosed or undisclosed), shall be liable to Tenant for (i) any loss, injury or damage to Tenant or to any other person, or to its or their property, irrespective of the cause of such injury, damage or loss, nor shall the aforesaid parties be liable for any loss of or damage to property of Tenant or of others entrusted to employees of Landlord; provided , that, except to the extent of the release of liability and waiver of subrogation provided in Section 7.03 hereof, the foregoing shall not be deemed to relieve Landlord of any liability to the extent resulting from the negligence or willful misconduct of Landlord, its agents or employees in the operation or maintenance of the Premises or the Building, (ii) any loss, injury or damage described in clause (i) above caused by other tenants, occupants or persons in, upon or about the Building, or caused by operations in construction of any private, public or quasi-public work, or (iii) even if due to negligence or willful misconduct, consequential damages arising out of any loss of use of the Premises or any equipment, facilities or other Tenant’s Property therein or otherwise. | 49Indemnifications
|
The Company may terminate the Executive’s employment if he is disabled and unable to perform the essential functions of the Executive’s then existing position or positions under this Agreement with or without reasonable accommodation for a period of 180 days (which need not be consecutive) in any 12-month period. If any question shall arise as to whether during any period the Executive is disabled so as to be unable to perform the essential functions of the Executive’s then-existing position or positions with or without reasonable accommodation, the Executive may, and at the request of the Company shall, submit to the Company a certification in reasonable detail by a physician selected by the Company to whom the Executive or the Executive’s guardian has no reasonable objection as to whether the Executive is so disabled or how long such disability is expected to continue, and such certification shall for the purposes of this Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of the physician in connection with such certification. If such question shall arise and the Executive shall fail to submit such certification, the Company’s determination of such issue shall be binding on the Executive. Nothing in this Section 3(b) shall be construed to waive the Executive’s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. | 30Disability
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This Agreement will terminate upon the earlier of (a) the Effective Time and (b) the date of termination of the Merger Agreement in accordance with its terms (the “ Expiration Time ”); provided that (i) Section 5 shall survive the Expiration Time in accordance with its terms; (ii) Section 6 shall survive the Expiration Time to the extent that Section 5 applies; and (iii) this Section 7 and Section 8 shall survive the Expiration Time indefinitely; provided , further that no such termination or expiration shall relieve any party hereto from any liability for any breach of this Agreement occurring prior to such termination. | 88Terminations
|
During the Term (defined below), the Employer shall employ Executive to serve as, and the Company shall appoint or cause to be appointed the Executive to the position of, the COO Operations of the Company, upon the terms and conditions set forth in this Agreement, and Executive shall report directly to the Chief Executive Officer of the Company (the “ CEO ”), unless otherwise determined by the Board of Directors of the Company (the “ Board ”). In addition, during the Term, Executive shall serve as the COO Operations of the Operating Partnership and the Employer and shall report to the CEO, unless determined otherwise by the Board. For the avoidance of doubt, Executive shall be an employee of the Employer. | 35Employment
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Any provision of this Amendment held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceability such provision in any other jurisdiction. | 79Severability
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Such Grantor will not create, incur, or suffer to exist any Lien on the Collateral owned by it except (i) the security interest created by this Security Agreement, and (ii) Liens permitted pursuant to Section 6.02 of the Credit Agreement. | 57Liens
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Whenever possible, each provision of this Agreement will be interpreted in a manner to be effective, valid and enforceable. If, however, any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or the remaining provisions of this Agreement. Furthermore, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and still have such similar provision be construed and enforced as legal, valid, and enforceable. | 79Severability
|
The Assignor hereby transfers and assigns to the Assignee, and the Assignee hereby acquires from the Assignor all of the Assignor’s rights and interests in and to the Assignment Agreement, of whatever kind or nature, and the Assignee hereby assumes and agrees to perform all obligations, duties, liabilities and commitments of the Assignor under the Assignment Agreement, of whatever kind or nature. | 7Assignments
|
(%2) (%3)On the Determination Date, the Company shall determine the extent to which the Performance Goal has been achieved. Subject to the provisions of this Section 3, the delivery of Shares with respect to the PRSUs is contingent on the attainment of the Performance Goal and, except as otherwise set forth in this Section 3, all outstanding PRSUs will be immediately forfeited on the Determination Date unless the Company determines that the Performance Goal has been satisfied. Upon such determination by the Company and subject to the provisions of the Plan and this Agreement, the Participant shall have the right to payment of that percentage of the target amount of PRSUs as corresponds to the level of the Performance Goal achieved. Furthermore, except as otherwise provided in Section 3 of this Agreement, in order to be entitled to payment with respect to any PRSUs, the Participant must be employed by the Company or any Subsidiary on the Determination Date. Except as otherwise provided in this Section 3, there shall be no proportionate or partial vesting of the PRSUs prior to the Determination Date. | 95Vesting
|
Neither this Agreement nor any of the rights, interests or obligations of the Distributor under this Agreement shall be assigned, delegated or sub- contracted without the prior written consent of the Company. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. In the event that the Company is purchased this agreement shall remain in effect. The buyer of the Company shall have the right to make a reasonable offer to buy out rights of the Distributor. The Distributor shall not reject a reasonable offer. | 7Assignments
|
This letter (together with the attached Obligations Agreement and Change in Control Agreement) sets forth the entire understanding between the Company and yourself with respect to your employment by the Company. All prior discussions, negotiations, correspondence and other understandings between you and the Company are superseded, and there are no representations, warranties or undertakings by the Company or you with respect to your employment by the Company, which are not set forth in this letter. | 38Entire Agreements
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Other than as contemplated in the Transaction Documents, neither the Issuer nor the Transferor shall, directly or indirectly, (a) merge with, purchase, own, hold, invest in or otherwise acquire any equity interests of, or any other interest in, all or substantially all of the assets of, any Person or any joint venture, (b) purchase, own, hold, invest in or otherwise acquire any Investment Property (except (i) those set forth in Schedule 4.2(y) attached hereto as of the Closing Date, (ii) Trust Accounts with financial institutions and investments in the ordinary course of business; provided , that with respect to any such Trust Accounts, the Indenture Trustee has a perfected Lien thereon and control thereof, in form, scope and substance satisfactory to the Indenture Trustee in its sole discretion and (iii) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business) or (c) make or permit to exist any loan, advances or guarantees to or for the benefit of any Person or assume, guarantee, endorse, contingently agree to purchase or otherwise become liable for or upon or incur any obligation of any Person except as provided in clause (b) above. The Issuer shall not purchase, lease, own, operate, hold, invest in or otherwise acquire any property or asset that is located outside of the United States except as provided in clause (b) above. The Issuer shall not have any Subsidiaries. | 83Subsidiaries
|
Each Party to this Agreement shall bear its own expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement. | 41Expenses
|
Except as set forth on Schedule 3.3 , the execution, delivery and performance of the Exchange Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Exchange Primary Securities and the reservation for issuance and issuance of Reserved Shares issuable upon exercise of the Rights) will not (i) result in a violation of the Certificate of Incorporation (as defined below) or any other organizational documents of the Company or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or Bylaws (as defined below) of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the “Principal Market ”) and including all applicable federal laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would not reasonably be expected to have a Material Adverse Effect. | 61No Conflicts
|
The execution, delivery and performance by Borrower of each Loan Document to which it is or is to be a party is within Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (a) contravene Borrower’s charter or bylaws, (b) violate any law, rule, regulation (including, without limitation, Regulation X of the Board), order, writ, judgment, injunction, decree, determination or award binding upon Borrower, (c) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on Borrower or any of Borrower’s properties except, in the case of performance by Borrower, to the extent that such conflict or breach would not be reasonably expected to result in a Material Adverse Effect, or (d) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of Borrower. As of the date hereof, Borrower is not in violation of any such law (including any Anti-Terrorism Laws), rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which (other than the violation or breach of any Anti-Terrorism Law) would be reasonably likely to have a Material Adverse Effect. | 70Powers
|
This Agreement may be executed and delivered by facsimile, e-mail, or other electronic signature, and in two or more counterparts, each of which will be deemed an original, and all of which will constitute the same agreement. | 26Counterparts
|
This Agreement and each other Related Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each Party and their respective successors, legal representatives and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. | 38Entire Agreements
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The waiver by Employer or the Executive of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent or other breach hereof. | 97Waivers
|
Purchaser and Seller shall cooperate fully as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns and any audit, litigation, or other proceeding (each a “ Tax Proceeding ”) with respect to Taxes imposed on or with respect to the assets, operations or activities of the Company or any Subsidiary. Such cooperation shall include the retention and (upon the other Party’s request) the provision of records and information which are reasonably relevant to any such Tax Return (including, for the avoidance of doubt, providing Purchaser with the U.S. federal income Tax Return of the Company, together with all supporting documentation and workpapers, for the Tax period ending on the Closing Date in order to provide Purchaser with the records and information reasonably necessary to prepare and file the Texas franchise Tax Return of the Company for the period beginning January 1, 2017, and ending on the Closing Date) or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding the above, the control and conduct of any Tax Proceeding that is a Third Party Claim shall be governed by Section 12.5 . | 24Cooperation
|
This Agreement may be executed in one or more counterparts. Each counterpart shall be considered an original and all such counterparts shall constitute a single agreement binding upon the parties. | 26Counterparts
|
Section headings herein and in the other Loan Documents are included for convenience only, and neither limit nor amplify the provisions of this Amendment or any other Loan Document . | 48Headings
|
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 December 29, 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
|
The miscellaneous provisions set forth in Article VIII of the Pledge Agreement apply to this Agreement. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission in “.pdf” or comparable format shall be as effective as delivery of a manually signed original. | 59Miscellaneous
|
Each party to this Agreement, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. Each party hereto agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and each party hereto agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. | 75Remedies
|
Notwithstanding anything to the contrary contained herein, the Board may, at any time and from time to time, without any further action of the Committee, exercise all the powers and duties of the Committee under the Plan. | 70Powers
|
Notwithstanding any provision herein to the contrary, the payment of any amount or provision of any benefit pursuant to subsection (b), (d), or (e) of this Section 8 (other than the Accrued Obligations) (collectively, the “ Severance Benefits ”) shall be conditioned upon Executive’s execution, delivery to the Company, and non-revocation of the Release of Claims (and the expiration of any revocation period contained in such Release of Claims) within sixty (60) days following the date of Executive’s termination of employment hereunder. If Executive fails to execute the Release of Claims in such a timely manner so as to permit any revocation period to expire prior to the end of such sixty (60) day period, or timely revokes Executive’s acceptance of such release following its execution, Executive shall not be entitled to any of the Severance Benefits. Further, (i) to the extent that any of the Severance Benefits constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, any payment of any amount or provision of any benefit otherwise scheduled to occur prior to the sixtieth (60 th ) day following the date of Executive’s termination of employment hereunder, but for the condition on executing the Release of Claims as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60 th ) day and (ii) to the extent that any of the Severance Benefits do not constitute “nonqualified deferred compensation” for purposes of Section 409A of the Code, any payment of any amount or provision of any benefit otherwise scheduled to occur following the date of Executive’s termination of employment hereunder, but for the condition on executing the Release of Claims as set forth herein, shall not be made until the first regularly scheduled payroll date following the date the Release of Claims is timely executed and the applicable revocation period has ended, after which, in each case, any remaining Severance Benefits shall thereafter be provided to Executive according to the applicable schedule set forth herein. For the avoidance of doubt, in the event of a termination due to Executive’s death or Disability, Executive’s obligations herein to execute and not revoke the Release of Claims may be satisfied on Executive’s behalf by Executive’s estate or a person having legal power of attorney over Executive’s affairs. | 74Releases
|
No broker or finder has acted for the Company in connection with this Agreement or the transactions contemplated thereby, and no broker or finder is entitled to any brokerage or finder’s fees or other commission in respect of such transactions based in any way on agreements, arrangements or understandings made by or on behalf of the Company. | 15Brokers
|
For purposes of this Section 2.16, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA. | 28Defined Terms
|
Except, in each case, as set forth on Schedule 4.15 , each International Loan Party owns, or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of its respective businesses, without conflict with the rights of any other Person, except where any such infringement could not reasonably be expected to have a Material Adverse Effect. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the International Loan Parties infringes upon any rights held by any other Person, except where any such infringement could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of such International Loan Party, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. | 53Intellectual Property
|
Except as set forth on Schedule 2.3 , the execution, delivery and performance of the Exchange Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Exchanged Notes and reservation for issuance and issuance of the Exchanged Conversion Shares) will not (i) result in a violation of the Certificate of Incorporation (as defined below) or any other organizational documents of the Company or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or Bylaws (as defined below) of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the “ Principal Market ”) and including all applicable federal laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would not reasonably be expected to have a Material Adverse Effect. | 61No Conflicts
|
During the Term (defined below), the Employer shall employ Executive to serve as, and the Company shall appoint or cause to be appointed the Executive to the position of, the CPO of the Company, upon the terms and conditions set forth in this Agreement, and Executive shall report directly to the Chief Executive Officer of the Company (the “ CEO ”), unless otherwise determined by the Board of Directors of the Company (the “ Board ”). In addition, during the Term, Executive shall serve as the CPO of the Operating Partnership and the Employer and shall report to the CEO, unless determined otherwise by the Board. For the avoidance of doubt, Executive shall be an employee of the Employer. | 35Employment
|
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF (OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401). | 47Governing Laws
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