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The Parties agree that this Agreement may be executed 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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Any notice, demand or request required hereunder shall be given in writing (at the addresses set forth in Exhibit A ) by any of the following means: (i) personal service; (ii) electronic communication, whether by telex, telegram or telecopying or other form of electronic communication; (iii) overnight courier; or (iv) registered or certified, first class U.S. mail, return receipt requested, or to such other addresses as Lender or Debtor may specify from time to time in writing. | 65Notices
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Neither the execution, delivery or performance of this Agreement by the Company, nor the consummation by it of the obligations and transactions contemplated hereby (including, without limitation, the issuance, the reservation for issuance and the delivery of the Shares and the provision to the Purchaser of the rights contemplated by the Transaction Documents) requires any consent of, authorization by, exemption from, filing with or notice to any Governmental Entity or any other Person, other than filings required under applicable U.S. federal and state securities laws. | 22Consents
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This Agreement shall be binding upon and inure to the benefit of all of the parties and, to the extent permitted or required by this Agreement, their successors, executors, administrators, heirs, legal representatives and assigns. | 13Binding Effects
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There is no claim, action, suit, proceeding, arbitration, investigation, hearing or notice of hearing, pending or threatened, before any court or governmental, administrative or other competent authority or private arbitration tribunal against the ETI, or relating to or affecting (directly or indirectly, including by way of indemnification) the Business or the Assets, or the transactions contemplated by this Agreement; nor are any facts which could reasonably give rise to any such claim, action, suit, proceeding, arbitration, investigation or hearing, which may have any material adverse effect, individually or in the aggregate, upon the Business, the value of the Assets or the transactions contemplated by this Agreement. ETI has not waived any statute of limitations or other affirmative defense with respect to any of the aforesaid matters. There is no continuing order, injunction or decree of any court, arbitrator or governmental, administrative or other competent authority to which ETI is a party, or to which ETI, the Assets or the Business is subject. ETI, nor any current officer, director, or employee of ETI has been permanently or temporarily enjoined or barred by order, judgment or decree of any court or other tribunal or any agency or other body from engaging in or continuing any conduct or practice in connection with the Business. | 58Litigations
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The term of this Agreement shall commence on the Effective Date and shall expire on the seventh (7 th ) annual anniversary of the first Delivery Date (the “ Initial Term ”) unless terminated earlier pursuant to the terms hereof. This Agreement shall be automatically renewed for successive additional two (2) year terms after the end of the Initial Term (each a “ Renewal Term ”) , unless either Party provides written notice to the other at least twenty-four (24) months prior to the end of the Initial Term or twenty-four (24) months prior to the end of the Renewal Term, as the case may be, that this Agreement shall expire at the end of the Initial Term or such Renewal Term. The Initial Term and all Renewal Terms shall be collectively referred to herein as the “ Term ”. | 89Terms
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Except as otherwise provided in the terms of the Award Agreement, upon termination of a Participant’s employment with or service to the Company, the Partnership and their Affiliates or membership on the Board or the board of directors of an Affiliate, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding Unit Appreciation Rights awarded to the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Unit Appreciation Rights; provided that the waiver contemplated under this Section 6(b)(iii) shall be effective only to the extent that such waiver will not cause the Participant’s Unit Appreciation Rights that are designed to satisfy Section 409A of the Code to fail to satisfy such Section. | 44Forfeitures
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This Agreement may not be changed or altered, except by a writing signed by both Parties. Until such time as this Agreement has been executed and subscribed by both Parties hereto: its terms and conditions and any discussions relating thereto, without any exception whatsoever, shall not be binding nor enforceable for any purpose upon any party. This Agreement constitutes an integrated, written contract, expressing the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, between the Parties. | 38Entire Agreements
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Except as otherwise provided herein, the provisions of this Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived, with and only with an agreement or consent in writing signed by the Company and the Majority Holders. The Holders acknowledge that by the operation of this Section, the Majority Holders may have the right and power to diminish or eliminate all rights of the other Holders under this Agreement. | 2Amendments
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The Calculation Agent shall initially be Citibank. The Calculation Agent is appointed for the purpose of making calculations and verifications as provided in this Section 3.1(a) . The Calculation Agent, as agent for the Noteholders, shall provide all services necessary to fulfill the role of Calculation Agent as set forth in this Base Indenture. | 46General
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Investor: (i) if a natural person, represents that the Investor has reached the age of 21 and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, or limited liability company or partnership, or association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Securities, such entity is duly organized, validly existing and in good standing under the laws of the state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational or trust documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Securities, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ward, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Investor is executing this Agreement, and such individual, partnership, ward, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Company, and represents that this Agreement constitutes a legal, valid and binding obligation of such entity. The execution and delivery of this Agreement will not violate or be in conflict with any order, judgment, injunction, agreement or controlling document to which the Investor is a party or by which it is bound. | 10Authorizations
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The authorization for the issuance of the securities comprising the Units and the use of the Memorandum and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Placement Agent. | 10Authorizations
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The Administrative Agent shall have received a customary solvency certificate from the chief financial officer, treasurer or another senior financial or accounting officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the transactions contemplated hereby in form reasonably satisfactory to the Administrative Agent. | 80Solvency
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The Loan Documents embody the entire agreement and understanding among the Borrowers, the Administrative Agent and the Lenders and supersede all prior agreements and understandings among the Borrowers, the Administrative Agent and the Lenders relating to the subject matter thereof other than any prior agreements and understandings that are expressly stated to survive the effectiveness hereof. | 38Entire Agreements
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The benefits in Section 4.2 are conditioned upon the Participant executing and not rescinding within the time permitted under applicable law, a release of claims as provided in a form substantially similar to that provided in Exhibit A (the “Release”). The Release will be presented to the Participant no later than five days after the Participant’s Date of Termination. | 74Releases
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Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except that such consent shall not be required in connection with any assignment to an Affiliate of the assigning Party, or to a Third Party in connection with a sale or transfer of the business to which this Agreement relates, or to any successor Person resulting from any merger or consolidation of such Party with or into such Person, provided that the assignee shall have agreed in writing to assume all of the assignor’s obligations hereunder, and provided , further , that the other Party shall be notified promptly after such assignment has been effected. Any such assignment shall not relieve the assigning Party of any liabilities or obligations owed to the other Party hereunder, including in the case of Jazz, the payment of any amounts described in Article 6, and in the case of ImmunoGen, the payment of any amounts described in Article 11. Any purported assignment of this Agreement in violation of this Section 14.8 shall be null and void. | 7Assignments
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Whether or not the Closing shall occur, all fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including accounting and legal fees shall be paid by the party incurring such expenses, except that, upon consummation of the transactions contemplated hereby, the Company shall pay up to $50,000 of the reasonable and documented out-of-pocket fees and expenses incurred by the Investors, including, without limitation, the reasonable and documented fees and expenses of counsel for the Investors. | 41Expenses
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Employee specifically acknowledges, agrees, represents and warrants that (a) Employee is aware that this Agreement releases claims including, but not limited to, all claims under the federal Age Discrimination and Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq ., (“ADEA”), the Older Worker Benefit Protection Act of 1967 (“OWBPA”) and any other state and local laws concerning age discrimination which may have arisen prior to the date of this Agreement; (b) Employee has been given the opportunity to consider this Agreement for at least twenty-one (21) days (“Consideration Period”) although he may sign it in less than twenty-one (21) days, if he wishes to do so; (c) Employee has been advised to consult with an attorney prior to executing this Agreement; (d) Employee has read and understands the terms and effect of this Agreement; (e) Employee agrees that, if he elects to sign this Agreement prior to the expiration of the Consideration Period, his election has been made freely and voluntarily and after having had an opportunity to consult an attorney; (f) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee acknowledges and agrees is adequate and more than he is entitled to receive; (g) After Employee signs this Agreement, regardless of when in those twenty-one (21) days that he does so, he will have 7 (seven) days to revoke his signature by delivery of written notice before 11:59 p.m. of the seventh calendar day after execution of the Agreement (“Revocation Period”) to John T. Kurtzweil, Akoustis Technologies, Inc., 9805 Northcorss Center Court, Suite H, Huntersville, NC 28078 / [email protected]; (h) this Agreement will become effective on the Effective Date and will not be enforceable by any party until the Effective Date; (i) Employee will not receive the Severance in Paragraph 2 of Agreement until after the seventh day has passed without Employee revoking the Agreement; (j) No attempted revocation after the expiration of such seven (7) day period shall have any effect on the terms of this Agreement (k) If Employee does not sign this Agreement within 21 days, the terms it offers will be automatically revoked and (l) any discussions, negotiations or exchanges of revised drafts of this Agreement will not extend the 21 day consideration period from the time this Agreement in its original form is first given to Employee. | 74Releases
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In the event of any termination of this Agreement pursuant to Section 8.1 , there shall be no further liability or obligation hereunder on the part of any party hereto as to whom the termination is effective, and this Agreement (other than Article I , Section 9.5 , Section 9.6 , Section 9.7 , Section 9.8 , Section 9.10 , and Section 9.11 ) shall thereafter be null and void as to such party; provided , that nothing contained in this Agreement (including this Section 8.2 ) shall relieve any party from liability for any breach of any of its representations, warranties, covenants or agreements set forth in this Agreement occurring prior to such termination. | 85Survival
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This Agreement shall be binding upon and inure to the benefit of the Members and their heirs, executors, administrators, successors, legal representatives, and permitted assigns. | 13Binding Effects
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Capitalized terms used but not defined herein have the meaning set forth in the Plan. | 29Definitions
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There is no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened in writing against Borrower in any court or by or before any other Governmental Authority, which would have or is reasonably likely to have, a Material Adverse Effect. There is no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened in writing against Guarantor or any other Restricted Party, in any court or by or before any other Governmental Authority, which would have or is reasonably likely to have, a Material Adverse Effect. | 58Litigations
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A Participant shall be vested in benefits under this Article IV to the same extent as such Participant is vested in benefits under the applicable Pension Plan. Although the Pension Plan was Frozen as of December 31, 2009, vesting will continue for Participants listed on Appendix B-2. | 95Vesting
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All real estate taxes, charges, and assessments affecting the Property (collectively, “ Taxes ”) shall be prorated on a per diem basis as of the Pro Ration Date, applying any discount for early payment applicable as of the Pro Ration Date, and on the basis of the actual fiscal year for which such taxes are assessed, and Buyer shall assume liability for payment of Taxes accruing in the year in which Closing occurs. In the event that the amount of Taxes for the current year is unknown at Closing, the Taxes shall be prorated based on the mill rate for taxes assessed for the immediately preceding year, taking into account the current appraised value for the Property issued by the County Appraisal District, and Buyer shall notify Seller of any necessary adjustment to such proration within thirty (30) days when correct tax figures are known, and thereafter any necessary adjustments shall be made. Buyer hereby acknowledges and agrees that Seller has or may file appeals (the “ Appeals ”) with respect to the current fiscal year and also with respect to prior year(s) ad valorem property taxes applicable to the Property (the “ Appealed Taxes ”). Seller shall be entitled, in Seller’s sole discretion, to continue to pursue such Appeals after the Closing Date. In the event that any such Appeal is successful in reducing the amount of Appealed Taxes payable with respect to prior years, Seller shall be entitled to the full amount of any rebate, refund or reduction resulting from such Appeal. In the event that any such Appeal is successful in reducing the amount of Appealed Taxes payable with respect to the current fiscal year, Seller and Buyer shall prorate the net proceeds of any rebate, refund or reduction resulting from such Appeal relating to the current fiscal year, after payment of Seller’s third party costs incurred in connection with the Appeal. This provision shall expressly survive Closing and the recordation of the Deed. | 87Taxes
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All corporate, partnership, limited liability company or similar action, as applicable on the part of such Warrant Holder, necessary for the authorization, execution, delivery and performance of this Agreement, the Warrant Exercise and the performance of all of such Warrant Holder’s obligations hereunder have been taken or will be taken prior to the applicable Closing. This Agreement has been duly executed by the Warrant Holder and constitutes valid and legally binding obligations of such Warrant Holder, enforceable against such Warrant Holder in accordance with their respective terms, subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. | 10Authorizations
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Assignment and Assumption ” ” ) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ “Assignor ” ” ) and [ Insert name of Assignee ] (the “ “ Assignee ” ” ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ “ Credit Agreement ” ” ), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. | 7Assignments
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Except as would not have a Material Adverse Effect: (i) each Transaction Party and each ERISA Affiliate is in compliance with the applicable provisions of ERISA and of the Code relating to Plans; (ii) no Reportable Event or non-exempt Prohibited Transaction has occurred or is reasonably expected to occur with respect to any Plan; (iii) there has been no determination that any Single Employer Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (iv) no Lien in favor of the PBGC or any Single Employer Plan has been imposed upon any Transaction Party or any ERISA Affiliate that remains unsatisfied; (v) no Transaction Party and no ERISA Affiliate has received from the PBGC or a plan administrator any notice relating to an intention to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan under Section 4042 of ERISA; (vi) no Transaction Party and no ERISA Affiliate has incurred any Withdrawal Liability that remains unsatisfied; and (vii) no Transaction Party and no ERISA Affiliate has received any notice concerning the imposition of Withdrawal Liability or any determination that a Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization, terminated or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA). | 39Erisa
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If either party breaches this Agreement, or any dispute arises out of, arises under, or relates to, this Agreement, the prevailing party shall be entitled to its reasonable attorneys' fees, paralegals' fees, and costs, at all levels. In the event of any litigation arising out of or relating to this Agreement, the exclusive venue shall be in Palm Beach County, Florida, and shall be governed by the laws of the State of Florida, without regard to its choice of law principles, except where the application of federal law applies, and shall be decided by a judge, not a jury. THE PARTIES SPECIFICALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY. In the event that either Party applies to seal any papers produced or filed in any judicial proceedings to preserve confidentiality (the "Moving Party"), both Parties hereby specifically agree (a) the Moving Party will provide the attorneys for the other Party with copies of all such papers; (b) the other Party will not oppose such application; and (c) the other Party will use his or its best efforts to join such application. | 47Governing Laws
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To the extent required by law the Company shall be entitled to withhold from any payments due hereunder any federal, state and local taxes required to be withheld in connection with such payment. | 99Withholdings
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The invalidity or unenforceability of any particular provision of this Agreement shall not affect or limit the validity or enforceability of the remaining provisions of this Agreement. | 79Severability
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(a) The Borrower agrees to pay to each Lender (other than any Defaulting Lender), through the Administrative Agent, on the date that is the last Business Day of March, June, September and December in each year and on the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a commitment fee (a “ Commitment Fee ”) on the daily amount of the applicable Available Unused Commitment of such Lender during the preceding quarter (or other period commencing with the Closing Date or ending with the date on which the last of the Commitments of such Lender shall be terminated) at a rate equal to the Applicable Commitment Fee. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the last of the Commitments of such Lender shall be terminated as provided herein. | 42Fees
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This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. Each counterpart may be delivered by email (as a .pdf attachment) or facsimile transmission, and an emailed or faxed signature shall have the same force and effect as an original signature. | 26Counterparts
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Except as expressly set forth in Section 2 above, nothing contained in this Amendment (or in any other agreement or understanding between the parties) shall constitute a waiver of, or shall otherwise diminish or impair, the Bank’s rights or remedies under the Loan Agreement or any of the other Loan Documents, or under applicable law. | 63No Waivers
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Executive recognizes that during the course of his employment, he will be exposed to information or ideas of a confidential or proprietary nature that pertain to Company’s business, financial, legal, marketing, administrative, personnel, technical or other functions or which constitute trade secrets (including, without limitation, specifications, designs, plans, drawings, software, data, prototypes, the identity of sources and markets, marketing information and strategies, business and financial plans and strategies, methods of doing business, data processing and technical systems, programs and practices, customers and users and their needs, sales history, financial health or material non-public information as defined under federal securities law) (collectively “Confidential Information”). Confidential Information also includes such information of third parties that has been provided to Company in confidence. All such information is deemed “confidential” or “proprietary” whether or not it is so marked. Information will not be considered Confidential Information to the extent that it is or becomes generally available to the public other than through any breach of this Agreement by or at the discretion of Executive. Nothing in this Section will prohibit the use or disclosure by Executive of knowledge that is in general use in the industry or general business knowledge, was known to him prior to his service to the Company or which enters the public domain other than through any breach of this Agreement by or at the discretion of Executive. Executive may also disclose such information if required by court order or applicable law provided that he (a) uses his reasonable best efforts to give the Company written notice as far in advance as is practicable to allow the Company to seek a protective order or other appropriate remedy (except to the extent that his compliance with the foregoing would cause him to violate a court order or other legal requirement), (b) discloses only such information as is required by law, and (c) uses his reasonable best efforts to obtain confidential treatment for any Confidential Information so disclosed. During Executive’s employment and for so long as the Confidential Information remains confidential or proprietary thereafter, he shall hold Confidential Information in confidence, shall use it only in connection with the performance of his duties on behalf of the Company, shall restrict its disclosure to those directors, employees or independent contractors of the Company with a need to know such Confidential Information, and shall not disclose, copy or use Confidential Information for the benefit of anyone other than the Company without the Company’s prior written consent. However, nothing in this Agreement shall prohibit the Executive from reporting possible violations of law to any governmental agency or entity in accordance with applicable whistleblower protection provisions including, without limitation, the rules promulgated under Section 21F of the Exchange Act or Section 806 of the Sarbanes-Oxley Act of 2002, or require the Executive to notify the Company (or obtain its prior approval) of any such reporting. Executive shall, upon Company’s request or his termination of employment, return to the Company and/or certify in a form satisfactory to the Company the destruction of any and all written documents containing Confidential Information in his possession, custody or control. For the avoidance of doubt, Executive shall not retain any copy in any form of any Confidential Information following such request or termination. | 20Confidentiality
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The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for working capital, capital expenditures, general corporate purposes and all other lawful purposes. | 92Use Of Proceeds
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The Existing Administrative Agent, the Existing Issuing Lenders, the Existing Swing Line Lender, the Existing Lenders (including the Exiting Lender), the Administrative Agent and the Lenders shall have received all fees required to be paid, and all expenses (including the reasonable fees and expenses of legal counsel) for which invoices have been presented (so long as such invoices have been presented at least one Business Day prior to the Closing Date). All such amounts will be paid with proceeds of Loans made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date. | 42Fees
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This Agreement may be amended but only in a writing executed by authorized representatives of the Parries. | 2Amendments
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The Employee shall not at any time, publicly or privately, verbally or in writing, directly or indirectly, make or cause or induce to be made any defaming and/or disparaging, derogatory, misleading or false statement about the Company or its products, or any current or former directors, officers, employees, or agents of the Company, or the business or other related strategy, plans, policies, practices or operations of the Company to any person or entity, including members of the investment community, press, customers, competitors, employees and advisors of the Company. Truthful disclosure to any government agency regarding possible violations of federal law or regulation in accordance with any whistleblower protection provisions of state or federal law or regulation shall not be deemed to violate this paragraph. In the event that the Company believes that the Employee has disparaged the Company, its services, products or any of their current or former affiliates, members, offices, directors, employees or agents, the Company shall notify the Employee of the disparaging remarks and may, in its discretion, request cessation and/or correction of the disparaging remarks, and Employee agrees to meet and confer within five days following receipt of such notification of any disparaging statement. In such meeting, the parties shall use their best efforts to identify a mutually agreeable remedy that will resolve and/or cure any possible harm resulting from the allegedly disparaging statement. If appropriate, the parties shall issue a joint statement that shall cure any disparaging comment. | 64Non-Disparagement
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This Agreement shall be binding upon and inure to the benefit of the Company and you and its and your respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement. | 13Binding Effects
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This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Washington. | 47Governing Laws
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The construction and administration of the Plan will be governed by ERISA. | 47Governing Laws
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than (w) a natural Person, (x) the Borrower, (y) any of the Borrower’s Affiliates or Subsidiaries or (z) any Competitor) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Lenders, the Swingline Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.3(c) with respect to any payments made by such Lender to its Participant(s). | 67Participations
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The Corporation represents and warrants that the undersigned has the authority to act on behalf of the Corporation and to bind the Corporation and all who may claim through it to the terms and conditions of this Agreement. Employee represents and warrants that he has the capacity to act on his own behalf and on behalf of all who might claim through him to bind them to the terms and conditions of this Agreement. Each Party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein. | 9Authority
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This Indenture Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. | 26Counterparts
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No investigation, action or proceeding is pending and, to Purchaser's knowledge , no action or proceeding is threatened and no investigation looking toward such an action or proceeding has begun, which questions the validity of this Agreement or any action taken or to be taken pursuant hereto or thereto. | 58Litigations
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Any non-prevailing Party to any action or proceeding to enforce any provision of this Agreement or to obtain damages as a result of a breach of this Agreement or to enjoin any breach of this Agreement shall reimburse the prevailing Party for any and all reasonable costs and expenses (including but not limited to attorneys’ fees, escrow agent’s fees for preparing for and participating in any such arbitration activities, expert witness fees, arbitrator’s fees and arbitration administrative charges) incurred by the prevailing Party in connection with such action or proceeding. | 75Remedies
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Except as Previously Disclosed, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company in the ordinary course of business and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company. | 91Transactions With Affiliates
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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. The Notes Collateral Agent represents and warrants that this Agreement is binding upon the Indenture Secured Parties. This Agreement is the “Intercreditor Agreement” under and as defined in the Indenture. | 10Authorizations
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Pledgor is solvent and will not be rendered insolvent by the acquisition of the Sold MSR Excess Spread PC or by this Agreement and, after giving effect to such acquisition and this Agreement, will not be left with an unreasonably small amount of capital with which to engage in its business. Pledgor does not intend to incur, nor does it believe that it has incurred, debts beyond its ability to pay such debts as they mature and is not contemplating the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of such entity or any of its assets. Pledgor is not pledging any Collateral with any intent to hinder, delay or defraud any of its creditors. | 80Solvency
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Purchaser may assign all or any portion of its rights hereunder to one or more Affiliates of Purchaser without the consent of Seller; however, any such assignment shall not relieve Purchaser of its obligations under this Agreement. | 7Assignments
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If any provision of this Agreement will be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision will be of no force or effect. The illegality or unenforceability of such provision, however, will have no effect upon and will not impair the enforceability of any other provision of this Agreement. In addition, should a court determine that any provision or portion of any provision of this Agreement is not reasonable or valid, the Parties hereto agree that such provision should be interpreted and enforce to the maximum extent which the court deems reasonable or valid and the Parties hereto agree to request that the court apply notional severance to give effect to the such provision or portion of any provision, including without limitation the restrictive provisions set out in Section 6 of this Agreement, to the fullest extent deemed reasonable by the court. | 79Severability
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The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights as described in the SEC Reports, all as necessary or required for use in connection with their respective businesses as presently conducted and which the failure to so have could have a Material Adverse Effect (collectively, the “ Intellectual Property Rights ”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. | 53Intellectual Property
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Notwithstanding Section 7.1, following the occurrence of a change in control (as defined in Section 2.6(a)): no amendment will be made following a change in control without the consent of the affected participant (or beneficiary or other person claiming through a participant) that adversely affects the rights of a participant (or beneficiary or other person claiming through a participant) under the plan as in effect immediately before such change in control, including (i) the right to make elections concerning the form and time of payment of distributions in accordance with Section 4.3(b) and the right to receive distributions in the form elected by the participant thereunder; and (ii) the right to the investment funds or options specified herein for the determination of deemed investment results applicable to participants’ accounts, as in effect immediately before such change in control. In particular, for purposes of clause (ii) of the preceding sentence, the committee will maintain a menu of investment funds under Section 5.2(a) that is substantially similar (in terms of investment styles and ability to position account(s) on a risk/reward spectrum) to the array of funds available immediately prior to the change in control. | 2Amendments
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Executive shall continue to receive his Base Salary (subject to withholding of all applicable taxes) for the CIC Severance Period in accordance with the Company’s normal payroll practices (but no less frequently than monthly) beginning on (i) the date of the Change in Control if Executive’s employment is terminated within six (6) months prior to the Change in Control or (ii) Executive’s Date of Termination if Executive’s employment is terminated on or within eighteen (18) months following the date of the Change in Control. | 11Base Salary
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Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Credit Party, the Collateral Agent, Co-Collateral Agents, the Administrative Agent, the Swing Line Lender or an Issuing Bank, shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise indicated to the Administrative Agent in writing. Each notice hereunder shall be in writing and may be personally served, emailed, telexed or sent by facsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of email, facsimile or telex, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided , no notice to any Agent shall be effective until received by such Agent. | 65Notices
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The Participant agrees to hold harmless and indemnify the Company for any and all liabilities resulting to it through violation by the Participant of the warranties and representations made by the Participant in, and other provisions of, this Agreement. | 49Indemnifications
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Notwithstanding the Change in Control vesting as stated in Section 2(b) above, any unvested RSUs will be forfeited immediately, automatically and without consideration upon a termination of the Participant’s Service (regardless of the reason for such termination and whether or not later to be found invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any), including a Participant’s change in status from employee to consultant or other personal service provider. Without limiting the generality of the foregoing, the RSUs and the Shares (and any resulting proceeds) will continue to be subject to Section 13 of the Plan. | 44Forfeitures
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If the Participant’s Service terminates because of the Participant’s Disability, then the Participant’s Options may be exercised only to the extent that such Options would have been exercisable by the Participant on the date Participant’s Service terminates and must be exercised by the Participant (or the Participant’s legal representative or authorized assignee) no later than twelve (12) months after the date the Participant’s Service terminates, but in any event no later than the expiration date of the Options. | 30Disability
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In consideration of the potential risks to the Consultant in rendering professional services in connection with this Consulting Agreement, the Company agrees to make no claim and hereby waives, to the fullest extent permitted by law, any claim or cause of action of any nature against the Consultant which may arise out of or in connection with this Consulting Agreement or the performance by Consultant of any Services under this Consulting Agreement except as expressly set forth in this Agreement. | 97Waivers
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All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses. Notwithstanding the foregoing, the Company shall pay up to $4,000 of the Investor’s legal expenses. | 41Expenses
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The provisions of this Plan and any Award shall be governed by and interpreted in accordance with the laws of England and Wales and any Group Company and Key Employees shall submit to the exclusive jurisdiction of the Courts of England and Wales. | 47Governing Laws
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This Offer Letter, together with the plans and documents referred to herein, constitutes and expresses the whole agreement of the parties hereto, or in the case of the Company any of its Affiliates or direct or indirect subsidiaries, with reference to any of the matters or things herein provided for or herein before discussed or mentioned with reference to your employment and supersedes that offer letter dated August 11, 2016. All promises, representation, collateral agreements and undertakings not expressly incorporated in this Offer Letter are hereby superseded by this Offer Letter; provided, however, that you reaffirm any post-separation obligations related to confidential or other protectable information that you have to the Company or its Affiliates or subsidiaries (including as to the protection and non-use of such information), assign the right to enforce such obligations to the Company, and acknowledge that going forward such obligations shall inure to the benefit of the Company, Cott and Cott’s other Affiliates. | 38Entire Agreements
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The execution and delivery by the Investor of each of the Transaction Agreements to which it is a party and the compliance by the Investor with all of the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein (including the purchase of the Investor Shares by the Investor) (i) will not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result, in the acceleration of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Investor is a party or by which the Investor is bound or to which any of the property or assets of the Investor is subject, (ii) will not result in any violation of the provisions of the certificate of incorporation or bylaws or comparable organizational documents of the Investor and (iii) will not result in any material violation of, or any termination or material impairment of any rights under, any law, rule or regulation, any license, authorization, injunction, judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Investor or any of its properties, except in any such case described in subclause (i) for any conflict, breach, violation, default, acceleration or lien which has not and would not reasonably be expected, individually or in the aggregate, to prohibit, materially delay or materially and adversely impact the Investor’s performance of its obligations under this Agreement. | 61No Conflicts
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The Company shall use its reasonable best efforts to (i) cause the Shelf Registration Statement filed pursuant to Section 1.1(a) to be declared effective by the SEC or otherwise become effective under the Securities Act as promptly as practicable after the filing thereof and (ii) keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and useable for the resale of Registrable Securities covered by such Shelf Registration Statement until such time as there are no Registrable Securities remaining, including by filing successive replacement or renewal Shelf Registration Statements upon the expiration of such Shelf Registration Statement. | 34Effectiveness
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The rights of the Investor hereunder may be transferred, assigned, or otherwise conveyed on a pro rata basis in connection with any transfer, assignment, or other conveyance of Registrable Securities to any transferee or assignee (other than a transfer pursuant to a registration statement or under Rule 144 promulgated under the Securities Act); provided that all of the following additional conditions are satisfied with respect to any transfer, assignment or conveyance of rights hereunder: (a) such transfer or assignment is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in writing to become subject to the terms of this Agreement by executing a joinder or similar document; and (c) the Company is given written notice by such Person of such transfer or assignment, stating the name and address of the transferee or assignee, identifying the Registrable Securities with respect to which such rights are being transferred or assigned. Any transfer, assignment or other conveyance of the rights of the Investor in breach of this Agreement shall be void and of no effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, legal representatives and assignees for the uses and purposes set forth and referred to herein. Nothing herein contained shall confer or is intended to confer on any third party or entity that is not a party to this Agreement any rights under this Agreement. | 7Assignments
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This Agreement, and all of Executive’s rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement shall be assigned by the Company to a person or entity which is a successor in interest (“ Successor ”) to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity. | 7Assignments
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Transferee (i) agrees that all Company Shares now or hereafter acquired by, transferred to or otherwise held by Transferee shall be bound by and subject to the terms of the Agreement, (ii) hereby adopts the Agreement with the same force and effect as if Transferee were originally a party thereto and (iii) agrees to be subject to the obligations and restrictions of a Shareholder thereunder. | 1Agreements
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Purchaser represents and warrants that it has complied with all applicable laws, rules and regulations within the applicable countries associated with this Agreement. Purchaser agrees to notify Seller immediately of any regulatory action of which Purchaser has knowledge that is taken in relation to it by any federal, national, state, provincial, regional, county or municipal authority within any country or special administrative region that relates to or affects the manufacture, packaging, labeling, storage, advertising, marketing, sale, licensing, or distribution of products or services related to the Patents and/or Patent Applications. Notwithstanding anything contained in this Agreement to the contrary, the obligations of the Parties shall be subject to all laws, present and future, of any government having jurisdiction over the Parties and this transaction, and to orders, regulations, directions or requests of any such government. | 19Compliance With Laws
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SINHA agrees that he will not do or say anything that disparages ALEXION, reflects negatively on ALEXION, or encourages any adverse action against ALEXION, except as required by law. | 64Non-Disparagement
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No Loan Party maintains or contributes to any employee pension benefit plan subject to title IV of ERISA, except those set forth in Schedule 7.6 (each, a “Pension Plan”). There is no material unfunded past service liability of any Pension Plan maintained by any Loan Party, and there is no “accumulated funding deficiency” within the meaning of Section 302 of ERISA, or any existing material liability with respect to any Pension Plan owed to the Pension Benefit Guaranty Corporation (“PBGC”) or any successor thereto, except any funding deficiency for which an application to the PBGC for waiver is pending or for which a waiver has been granted by the PBGC. | 39Erisa
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This Agreement shall be administered by the Head of Total Rewards (Global) of the Company (the “Plan Administrator”), which shall be the “administrator” and “named fiduciary” of the Agreement, as such terms are defined in ERISA. | 46General
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The proceeds of the Advances will be used by the Borrower for the purposes described in Section 5.09. No Loan Party nor any Restricted Subsidiary thereof is engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U). No part of the proceeds of the Advances will be used for purchasing or carrying directly or indirectly margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X or for any other purpose which would constitute this transaction a “purpose credit” within the meaning of Regulation U. Following the application of the proceeds of the Advances, not more than twenty-five percent (25%) of the value of the assets (either of the Borrower only or of Holdings and its Restricted Subsidiaries on a consolidated basis) will be “margin stock”. No Loan Party nor any Restricted Subsidiary thereof (a) is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U) or (b) will use any proceeds for the purpose of purchasing or carrying any margin stock or for any other purpose which would constitute this transaction a “purpose credit”. | 92Use Of Proceeds
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No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof. Any such waiver by a Party shall be valid only if set forth in writing by such Party. | 97Waivers
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Subject to the provisions of this Agreement, Executive will not disparage Employer, its holding, parent or subsidiary entities, or any Affiliate or officer, director, investor, executive, products, practices, services, operations, ethics, management, policies, standards, or methods in any way, at any time. The Company agrees that its CEO, Senior Officers reporting to the CEO, and the Board will not make any public disparaging statements about the Executive; provided however, internal Company discussions between Senior Officers, the CEO or the Board with respect to Executive, or with persons or advisors with a business reason to know of any matters pertaining to Executive, or statements made in investigations or testimony in any administrative, judicial or arbitration proceeding are not encompassed by this provision and do not breach this provision. In response to any inquiries from prospective employers regarding Executive’s employment with Employer, Employer will provide a neutral letter of reference (dates of employment, position(s) held and salary at the time of separation from employment) and will indicate that Executive resigned his employment. Nothing in this paragraph shall preclude Executive from testifying honestly if required by law in a proceeding or from participating fully in a governmental investigation. | 64Non-Disparagement
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You agree that you will not disparage or defame the reputation, character, image, products, or services of the Company, provided that you shall respond accurately and fully to any question, inquiry, or request for information when required by legal process. | 64Non-Disparagement
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All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed telex or facsimile or email if sent during normal business hours of the recipient; if not, then on the next Trading Day, (c) five (5) Trading Days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to (a) in the case of the Company, to Two Rivers Water & Farming, Co., 3025 South Parker Rd. Suite 140 Aurora, CO. 80014 [email protected] and (b) in the case of the Investors, as the case may be, to INSERT ADDRESS AND EMAIL , Email:, or Black Mountain Equities, Inc., Email: [email protected]. | 65Notices
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This Agreement may be modified, only by a written instrument signed by the parties. This Agreement shall not amend or affect any written employee benefit plan of the Company, and Goodwin’s benefits, if any, under such plans shall be governed by the terms of each plan in which Goodwin is or was a participant. No failure or delay by the Company in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other right or further exercise of any other right or remedy. The recitals and any defined terms therein are incorporated into and made a part of this Agreement. | 59Miscellaneous
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Create, incur or suffer to exist any Lien on any of its assets other than Permitted Liens. | 57Liens
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All proceeds of the Loans and Letters of Credit will be used by Borrower (x) to pay fees and expenses in connection with the Combination Transaction and (y) for any purpose permitted by law, including, without limitation, working capital and other general corporate purposes. Neither the making of any Loan nor the use of the proceeds thereof nor any other extension of credit hereunder will violate the provisions of Regulations T, U, or X of the Federal Reserve Board. No Swingline Loan shall be used more than once for the purpose of refinancing another Swingline Loan, in whole or part. Borrower is not engaged principally or as one of its important activities in the business of extending credit for the purposes of “purchasing” or “carrying” any “margin stock” within the respective meanings of such terms under Regulations T, U and X of the Federal Reserve Board. | 92Use Of Proceeds
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The Company will, and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including without limitation Environmental Laws) and (ii) perform in all material respects its obligations under material agreements to which it is a party, except, in the case of clauses (i) and (ii) of this Section 5.07, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Company will, and will cause each of its Subsidiaries to ensure that no UK Borrower shall do anything to change the location of its centre of main interest (as that term is used in Article 3(1) of the Regulation) from England and Wales. Each Swiss Borrower shall at all times comply with the Swiss Non-Bank Rules. For the purposes of this Section 5.07 , each Swiss Borrower shall assume that the aggregate number of Lenders under this Agreement which are not Swiss Qualifying Lenders is ten (10). | 19Compliance With Laws
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There are no pending or threatened disputes or disagreements with respect to any agreements relating to any Intellectual Property Rights to which the Company is a party or by which the Company is bound. Other than with respect to commercially available software products under standard end-user object code license agreements, there is no outstanding option, license, agreement, claim, encumbrance or shared ownership interest of any kind relating to the Intellectual Property Rights, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the intellectual property of any other person. | 1Agreements
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Except as otherwise provided herein, your Restricted Share Units will vest in full on the earlier of (1) the one (1) year anniversary of the Grant Date, and (2) the date of the Annual General Meeting of shareholders in respect of fiscal 2017, provided in each case that you are a member of the Company’s Board of Directors on such date (or your term of service ends on such date). No credit will be given for periods following Termination of Directorship. | 95Vesting
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Each party hereto agrees to maintain the confidentiality and existence of the non-public information provided to it by or on behalf of the other party, except that the foregoing shall not prohibit (a) disclosure of such information to such party’s Affiliates, directors, managers, officers, employees, agents, representatives, advisors, consultants, investors, potential investors, lenders and potential lenders so long as such disclose agrees to maintain the confidentiality of such information as set forth herein or (b) any disclosure required by or regulations mandating disclosure (including Purchaser’s and its affiliates’ filings or other disclosures required by or customary in connection with regulation by the Securities and Exchange Commission). Further, Purchaser and Seller shall cause those people in their employ and their third party professionals to be bound by the same level of care with respect to maintaining the confidentiality of the existence of the transactions contemplated by this Agreement and the non-public information provided to them in connection therewith as Purchaser and Seller are charged with hereunder. | 20Confidentiality
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Executive’s health insurance benefits shall cease on the last day of the month in which the Separation Date occurs, subject to Executive’s right to continue Executive’s health insurance under COBRA. Executive’s participation in all benefits and incidents of employment, including, but not limited to, equity vesting (including the Stock Awards), and the accrual of bonuses, vacation, and paid time off, ceased as of the Separation Date, except as may be provided in Section 1 above. | 12Benefits
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Hecla shall pay any applicable VAT taxes incurred in connection with this Agreement, the payment of the Cash Consideration or the issuance of the Consideration Shares. If Golden Minerals becomes obligated to pay any such taxes, Hecla shall promptly reimburse Golden Minerals for such amounts. | 87Taxes
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Will be permitted, and its Subsidiaries will be permitted to create, incur or permit to exist any Lien, provided, however, that at the time of the creation of each Lien (including each Lien granted in connection with a Permitted Securitization Transaction) and immediately after giving effect thereto and to the application of any proceeds of the Indebtedness secured thereby, the aggregate outstanding principal Indebtedness and other monetary obligations then secured by all Liens shall not exceed 15% of Consolidated Total Assets. Without limitation of the independent application and effect of this Section, it is expressly agreed and understood that Liens permitted by this Section are and shall be permitted only upon the express condition that the obligations so secured do not violate the applicable provisions of Section 5.12 . | 57Liens
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Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment shall be made in lawful money of the United States of America by a check drawn on the account of the Company and sent via overnight courier service to such Person at such address as previously provided to the Company in writing (which address, in the case of each of the Purchasers, shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement); provided , that the Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Company with prior written notice setting out such request and the Holder's wire transfer instructions. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day. Any amount of Principal or other amounts due under the Transaction Documents which is not paid when due shall result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount at the rate of eighteen percent (18.0%) per annum from the date such amount was due until the same is paid in full (“ Late Charge ”). | 68Payments
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Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms. | 79Severability
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This Amendment is a Credit Document as defined in the Credit Agreement, and the provisions of the Credit Agreement generally applicable to Credit Documents are applicable hereto and incorporated herein by this reference. | 59Miscellaneous
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Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings ascribed thereto in Appendix A to the Sale and Servicing Agreement, dated as of February 1, 2017, among the Issuer, California Republic Funding, LLC, the Servicer and U.S. Bank National Association, which Appendix is hereby incorporated into and made a part of this Agreement. Appendix A also contains rules as to usage applicable to this Agreement. | 29Definitions
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The Executive’s annual base salary shall be $374,000. The Executive’s base salary may be redetermined by the Company’s Compensation Committee, after consultation with the CEO. The base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary shall be payable in a manner that is consistent with the Company’s usual payroll practices for senior executives. | 11Base Salary
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Employee agrees to be reasonably available through January 31, 2018, for consultation with and assistance to Bank or Affiliate representatives with respect to matters and issues within Employee’s job responsibilities or knowledge during Employee’s employment by the Bank. Employee agrees to be available for up to 15 hours per week through December 31, 2017, and up to 5 hours per week thereafter. Employee acknowledges and agrees that such cooperation with the Bank is necessary for a proper and orderly transition and that the consideration set forth herein fully compensates Employee for this reasonable cooperation. | 24Cooperation
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The proceeds of the Loans shall be used by the Borrowers and their Subsidiaries (a) to purchase loans or other eligible assets pursuant to the Borrowers’ investment guidelines and (b) for operating expenses and general corporate purposes of the Borrowers and their Subsidiaries. | 92Use Of Proceeds
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In the event that the Initial Closing shall not have occurred with respect to the Buyer on or before ten (10) Trading Days from the date hereof due to the Company’s or the Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above (and the nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date by delivering a written notice to that effect to each other party to this Agreement and without liability of any party to any other party. | 88Terminations
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Capitalized terms used herein without definition have the meanings ascribed to them in the Securities Purchase Agreement. | 29Definitions
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Unless otherwise specifically provided in this Agreement, all notices or other communications (collectively and severally called “Notices”) required or permitted to be given under this Agreement, shall be in writing, and shall be given by: (A) personal delivery (which form of Notice shall be deemed to have been given upon delivery), (B) by telegraph or by private airborne/overnight delivery service (which forms of Notice shall be deemed to have been given upon confirmed delivery by the delivery agency), or (C) by electronic or facsimile or telephonic transmission, provided the receiving party has a compatible device or confirms receipt thereof (which forms of Notice shall be deemed delivered upon confirmed transmission or confirmation of receipt). Notices shall be addressed to the address set forth below, or to such other address as the receiving party shall have specified most recently by like Notice, with a copy to the other party. | 65Notices
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This Agreement and the Employment Agreement, taken together, constitute the complete understanding between the parties and supersedes all such prior agreements between the parties and may not be changed orally. Employee acknowledges that neither the Company nor any representative of the Company has made any representation or promises to Employee other than as set forth herein or therein. No other promises or agreements shall be binding unless in writing and signed by the parties. | 38Entire Agreements
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Each Loan Party will, and will cause each Subsidiary to, (i) comply with each Requirement of Law applicable to it or its property (including, without limitation, Environmental Laws) and (ii) perform in all material respects its obligations under material agreements to which it is a party. Each Loan Party will maintain in effect and enforce policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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The Indemnitee hereby represents and warrants that he or she has obtained all waivers and/or consents from third parties which are necessary to execute and perform this Agreement without being in conflict with any other agreement, obligation or understanding with any such third party. The Indemnitee represents that he or she is not bound by any agreement or any other existing or previous business relationship which conflicts with, or may conflict with, the performance of his or her obligations hereunder or prevent the full performance of his or her duties and obligations hereunder. | 22Consents
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All covenants and agreements contained herein, other than those which by their terms apply in whole or in part after the Closing (which shall survive the Closing), shall terminate as of the Closing, provided nothing herein shall relieve any party of liability for any breach of such covenant or agreement before it terminated. Except for the warranties and representations contained in clauses (a)(i), (b), (c), (d), (e), (f)(i), (l) and (o) of Section 3.01 and the representations and warranties contained in Section 3.02, which shall survive the Closing until expiration of the applicable statute of limitations, the warranties and representations made herein shall survive for one (1) year following the Closing Date and shall then expire; provided that nothing herein shall relieve any party of liability for any inaccuracy or breach of such representation or warranty to the extent that any good faith allegation of such inaccuracy or breach is made in writing prior to such expiration. | 98Warranties
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