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The Company is a corporation duly organized and validly existing under the laws of the State of Delaware. | 66Organizations
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If the Participant dies, this Option shall thereon terminate, except that this Option may be exercised by the Participant’s legal representatives, heirs, legatees or distributees, to the extent otherwise then exercisable, for a period of six months from the date of the Participant’s death or until the Expiration Date, whichever period is shorter. | 27Death
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Each Borrower and each Lender hereby acknowledges and agrees that each Lender and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any Borrower and its Affiliates. | 31Disclosures
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All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email as follows: (i) if to any Guarantor, in care of Crawford and at its address for notices set forth in the Credit Agreement, and (ii) if to any Guaranteed Party, at its address for notices set forth in the Credit Agreement; in each case, as such addresses may be changed from time to time pursuant to the Credit Agreement, and with copies to such other Persons as may be specified under the provisions of the Credit Agreement. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in the Credit Agreement shall be effective as provided therein. | 65Notices
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If the Total Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders (including any Eligible Assignee that becomes a Lender pursuant to this Section 2.19 ) of the final allocation of such increase and the Increase Effective Date. Simultaneously with the Increase Effective Date, (i) the Commitments of each of the Lenders and the outstanding amount of all Advances shall be reallocated to take into account such increase and the final allocation thereof, and the requisite assignments shall be deemed to be made among the Lenders (including any Eligible Assignee that becomes a Lender pursuant to this Section 2.19 ), with the same force and effect as if such assignments were evidenced by the applicable Assignments and Assumptions but without the payment of any related assignment fee, and no other documents or instruments shall be, or shall be required to be, executed in connection with such assignments (all of which such requirements are hereby waived), and (ii) each assignee Lender shall make full cash settlement with each corresponding assignor Lender, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, with respect to all such assignments and reallocations. | 33Effective Dates
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Each of the Members acknowledges that they, and their respective counsel, all substantially participated in the negotiation, drafting and editing of this Amendment. Accordingly, the Parties agree that the provisions of this Amendment shall not be construed or interpreted for or against any Member based on authorship. | 23Construction
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Each party shall be responsible for its own fees and expenses; provided, that the Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, the costs associated with any legal opinions required to be rendered to the Company’s transfer agent in connection with the lifting of any legends on the Securities, DTC fees or broker’s commissions (other than for Persons engaged by any Subscriber) relating to or arising out of the transactions contemplated hereby. The Company (subject to the foregoing qualification) shall pay, and hold each Subscriber harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. | 42Fees
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The terms and provisions of this Agreement may only be amended, modified or waived at any time and from time to time by a writing executed by the Company and the Investor(s) holding a majority of the then-outstanding Registrable Securities held by the Investor(s) and its assigns; provided , that any amendment, modification or waiver that would disproportionately and adversely affect the rights, benefits or obligations of any other Holders or group of Holders in a different manner than all of the Holders, shall require the written consent of such Holder or the Holders holding a majority of the then-outstanding Registrable Securities held by the Holders other than the Investor(s). | 2Amendments
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During the Employment Term and through March 15, 2020, you agree that you will make no disparaging or defamatory comments in any respect regarding the Company, its products or services , or its directors and officers. Similarly, the directors and officers of Company will not make disparaging or defamatory comments in any respect about you. For purposes of this Letter Agreement, a disparaging or defamatory comment is any communication which, if publicized, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character or product quality of the person or entity to whom the communication relates. | 64Non-Disparagement
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The Company shall, by 4:30 p.m. (New York City time) on the Trading Day immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and within the time required by such form issue a Current Report on Form 8-K including the Transaction Documents as exhibits thereto. From and after the issuance of such Current Report on Form 8-K, the Company shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company, or any of their respective officers or directors, in connection with the transactions contemplated by the Transaction Documents. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or the Exchange, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents (including signature pages thereto) with the Commission and (b) to the extent such disclosure is required by law or Exchange regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted hereunder. | 71Publicity
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Each of the Subsidiary Guarantors and Unencumbered Property Subsidiaries and each of the Subsidiaries of the Borrower and REIT (i) is a corporation, limited partnership, general partnership, limited liability company or trust duly organized under the laws of its State of organization and is validly existing and in good standing under the laws thereof, (ii) has all requisite power to own its property and conduct its business as now conducted and as presently contemplated and (iii) is in good standing and is duly authorized to do business in each jurisdiction where an Unencumbered Property included in the calculation of Unencumbered Asset Value owned or leased by it is located (to the extent required by applicable law) and in each other jurisdiction where a failure to be so qualified could have a Material Adverse Effect. | 83Subsidiaries
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The Administrator may accelerate the vesting of all or a portion of the PSUs or Dividend Equivalents in such circumstances as it, in its sole discretion, may determine. Participant acknowledges that the PSUs and the Shares subject to the PSUs are subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan, including Section 13.2 of the Plan. | 0Adjustments
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In any action at law or in equity to enforce any of the provisions or rights under this Grant Agreement, including any arbitration proceedings to enforce such provisions or rights, the unsuccessful party to such litigation or arbitration, as determined by the court in a final judgment or decree, or by the panel of arbitrators in its award, shall pay the successful party or parties all costs, expenses and reasonable attorneys’ fees incurred by the successful party or parties (including without limitation costs, expenses and fees on any appeals), and if the successful party recovers judgment in any such action or proceeding such costs, expenses and attorneys’ fees shall be included as part of the judgment. | 25Costs
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The Company shall indemnify the Executive, to the maximum extent permitted by applicable law against all costs, charges and expenses incurred or sustained by her in connection with any action, suit or proceeding to which he may be made a party by reason of her being an officer, director or employee of the Company or of any subsidiary or affiliate of the Company. This indemnification shall be pursuant to an Indemnification Agreement, a copy of which is annexed as Exhibit C . | 49Indemnifications
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This Agreement shall not be assigned to other parties. | 7Assignments
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If the Optionee becomes disabled prior to the Expiration Date, then this Option may be exercised by the Optionee or by the Optionee’s legal representative. | 30Disability
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This Agreement (including the Exhibits and Schedules hereto) constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement, including the Original Agreement and (b) is not intended to confer, nor shall it confer, upon any Person other than the parties hereto any legal or equitable rights or remedies or benefits of any nature whatsoever. | 38Entire Agreements
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Seller (or an affiliate of Seller on behalf of Seller) and Buyer (or an affiliate of Buyer on behalf of Buyer) are parties to a non-disclosure agreement with respect to Seller and the Business (the “NDA”). To the extent not already a direct party thereto, Seller and Buyer hereby assume the NDA and agree to be bound by the provisions thereof. Without limiting the terms of the NDA, subject to the requirements of applicable law, all non-public information regarding the parties and their business and properties that is disclosed in connection with the negotiation, preparation or performance of this Agreement shall be confidential and shall not be disclosed to any other person or entity, except in accordance with the terms of the NDA. | 20Confidentiality
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AMH shall pay to NMM successive quarterly installments comprising all accrued and unpaid interest on the principal balance hereof from time-to-time outstanding at the Prime Rate plus one percent (1%), commencing on the first day of the first month immediately following the execution of this Note, and continuing on the same day of each third (3 rd ) succeeding month thereafter until the Maturity Date. | 54Interests
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Notwithstanding anything to the contrary herein, this Letter Agreement may be terminated at any time prior to the closing of the Purchase Transaction, (A) by mutual written consent of the parties hereto, (B) automatically, and without any action of any of the parties hereto, upon (x) any valid termination of the Merger Agreement by any party thereto or (y) the withdrawal of the Plan of Reorganization or any event that renders the Plan of Reorganization or an order approving the Plan of Reorganization null or void, (C) by Oncor Holdings, if the board of directors of Oncor Holdings determines in good faith after consultation with its outside financial advisors and outside legal counsel, and based on the advice of such counsel, that proceeding with this Letter Agreement would be inconsistent with its applicable fiduciary duties or (D) by Oncor, if the board of directors of Oncor determines in good faith after consultation with its outside financial advisors and outside legal counsel, and based on the advice of such counsel, that proceeding with this Letter Agreement would be inconsistent with its applicable fiduciary duties. | 88Terminations
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Notwithstanding anything herein to the contrary, the Company shall not be obligated to make any payments or provide any benefit under Section 2.1 hereof, unless the Covered Employee executes a valid and binding release in the form established by the Company that becomes effective no later than the 60 th day following a Covered Employee’s Termination without Cause (the “Release”). The Release shall include, among other provisions, a release of claims against the Company, its shareholders, partners, officers, directors, employees, attorneys, and agents from any and all claims and from any and all causes of action of any kind or character, including but not limited to all claims or causes of action arising out of such Covered Employee’s employment with the Company or the termination of such employment, and the performance of the Company’s obligations hereunder and an acknowledgement that the receipt of the benefits provided hereunder by such Covered Employee shall constitute full settlement of all such claims and causes of action. For the avoidance of doubt, if the Release does not become effective by the 60 th day following a Covered Employee’s Termination without Cause, no payments or benefits will be due the Covered Employee under this Plan. | 74Releases
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Guarantor is solvent and is not rendered insolvent by the obligations undertaken in this Guaranty. Guarantor is not contemplating either the filing of a petition or proceeding under any state or federal bankruptcy or insolvency or reorganization laws or the liquidating of all or a major portion of Guarantor’s property. | 80Solvency
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For purposes of this Section 2.18, the term “ applicable law ” includes FATCA. | 28Defined Terms
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All material consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by the originator of such 2017-1 Lease Agreement in connection with (a) the origination or acquisition of such 2017-1 Lease Agreement, (b) the execution, delivery and performance of such 2017-1 Lease Agreement by the Titling Trust, and (c) the acquisition of such 2017-1 Lease Agreement and the related 2017-1 Leased Vehicle by the Titling Trust, were duly obtained, effected or given and were in full force and effect as of such date of origination or acquisition. | 5Approvals
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The Parties do not intend to violate any public policy or statutory common law. However, if any sentence, paragraph, clause or combination of this Agreement is in violation of any law or is found to be otherwise unenforceable, such sentence, paragraph, clause or combination of the same shall be deleted and the remainder of this Agreement shall remain binding, provided that such deletion does not alter the basic purpose and structure of this Agreement. | 79Severability
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Seller shall jointly and severally indemnify Buyer and hold Buyer harmless against and in respect of any and all losses, liabilities, damages, obligations, claims, Encumbrances, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by Buyer resulting from any breach of any representation, warranty, covenant or agreement made by Seller herein or in any instrument or document delivered to Buyer pursuant hereto. | 49Indemnifications
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THIS AMENDMENT AND THE EXISTING CREDIT AGREEMENT (AS AMENDED BY THIS AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. | 38Entire Agreements
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Except to the extent necessary for proceedings relating to enforcement of the arbitration agreement, the award or other, related rights of the Parties, the fact of the arbitration, the arbitration proceeding itself, all evidence, memorials or other documents exchanged or used in the arbitration and the arbitrators’ award shall be maintained in confidence by the Parties to the fullest extent permitted by applicable Law. However, a violation of this covenant shall not affect the enforceability of this agreement to arbitrate or of the Tribunal’s award. | 20Confidentiality
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Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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Each Borrower will not, and will not permit any Loan Party Subsidiary to, use the proceeds of any loan made hereunder for any purpose other than (a) on the Closing Date, to pay the fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, in each case, as set forth in the Funds Flow Agreement, and (b) thereafter, consistent with the terms and conditions hereof, for their lawful and permitted general corporate purposes (including that no part of the proceeds of the loans made to Borrowers will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors). | 92Use Of Proceeds
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This Agreement shall inure to the benefit of and be binding upon the successors, heirs, personal representatives, and permitted assigns of the parties. This Agreement is freely assignable by the Escrow Parties; provided, however, that no assignment by such party, or it successors or assigns, shall be effective unless prior written notice of such assignment is given to the other parties, including, without limitation, the Escrow Agent; and provided, further, that any assignee satisfies the Escrow Agent’s requirements set forth in Section 3 above. This Agreement may not be assigned by the Escrow Agent, except that upon prior written notice to the Escrow Parties, the Escrow Agent may assign this Agreement to an affiliated or successor bank or other qualified bank entity. | 7Assignments
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Seller and Purchaser hereby covenant and agree that, at all times after the Effective Date and continuing after the Closing, unless consented to in writing by the other party (which consent may be granted or withheld in the sole discretion of the party whose consent is being requested), no press release or other public disclosure concerning this transaction shall disclose the Purchase Price or any other economic terms of this transaction, and each party agrees to use best efforts to prevent disclosure of any such restricted information by any third party. Notwithstanding the foregoing, (i) each party shall be entitled to make disclosures concerning this Agreement and materials provided hereunder to its lenders, attorneys, accountants, employees, agents and other service professionals as may be reasonably necessary in furtherance of the transactions contemplated hereby, (ii) Purchaser shall be entitled to make disclosures concerning this transaction and materials provided hereunder to its potential debt and equity sources, and (iii) each party shall be entitled to make such disclosures concerning this Agreement and materials provided hereunder as may be necessary to comply with (a) any court order, (b) the directive of any applicable governmental authority, or (c) any applicable securities law, rule and/or regulation. The provisions of this Section 9.16 shall survive Closing or any termination of this Agreement. | 20Confidentiality
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In case any one or more of the provisions of this Agreement shall be held by any court of competent jurisdiction or any arbitrator selected in accordance with the terms hereof to be illegal, invalid or unenforceable in any respect, such provision shall have no force and effect, but such holding shall not affect the legality, validity or enforceability of any other provision of this Agreement; provided that the provisions held illegal, invalid or unenforceable do not reflect or manifest a fundamental benefit bargained for by a Party hereto. | 79Severability
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The Borrower shall use the proceeds of the Initial Term Loans, solely as set forth in Section 4.16. The Borrower shall not request any Term Loans, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Term Loans (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in each case in violation of applicable Sanctions or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto. | 92Use Of Proceeds
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The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at such Closing. From the date of this Agreement until such Closing, before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Change of Control, Default or Event of Default shall have occurred and be continuing. | 62No Defaults
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This Agreement may be changed, amended, terminated, modified, extended or superseded, or compliance with any term or condition hereof may be waived, only if agreed to in writing by the parties hereto, or in the case of a waiver, by the party waiving compliance. No waiver by either party hereto of any provision of this Agreement shall be deemed a waiver of any other provision hereof or a waiver of the same provision at any prior or subsequent time. | 60Modifications
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All notices, demands, statements, designations, approvals or other communications (collectively, " Notices ") given or required to be given by either party to the other hereunder shall be in writing, shall be (A) delivered by a nationally recognized overnight courier, or (B) delivered personally. Any such Notice shall be delivered (i) to Tenant at the appropriate address set forth in Section 10 of the Summary, or to such other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) to Landlord at the addresses set forth in Section 11 of the Summary, or to such other firm or to such other place as Landlord may from time to time designate in a Notice to Tenant. Any Notice will be deemed given on the date of receipted delivery, of refusal to accept delivery, or when delivery is first attempted but cannot be made due to a change of address for which no Notice was given. Notwithstanding anything to the contrary contained herein, if any breach of security in the Building or the Premises shall occur, then Landlord shall as immediately as practical provide notice to Tenant via e-mail to [email protected] or such other email address(es) as Tenant shall from time to time notify Landlord in writing. If Tenant is notified of the identity and address of Landlord's mortgagee or ground or underlying lessor, Tenant shall give to such mortgagee or ground or underlying lessor written notice of any default by Landlord under the terms of this Lease by registered or certified mail. The party delivering Notice shall use commercially reasonable efforts to provide a courtesy copy of each such Notice to the receiving party via electronic mail. | 65Notices
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The parties hereto agree that the Existing Escrow and Security Agreement is hereby amended and restated in this Escrow and Security Agreement, and this Escrow and Security Agreement shall constitute neither a release nor novation of any lien or security interest arising under the Existing Escrow and Security Agreement nor a refinancing of any indebtedness or obligations arising thereunder or under the Existing Credit Agreement or related documents, but rather the liens and security interests in effect under the Existing Escrow and Security Agreement shall continue in effect on the terms hereof. | 2Amendments
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THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. | 47Governing Laws
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A Lender that is a Non-Funding Lender pursuant to clause (a) of the definition of Non-Funding Lender shall not earn and shall not be entitled to receive, and Borrower shall not be required to pay, such Lender’s portion of the Unused Revolving Loan Commitment Fee during the time such Lender is a Non-Funding Lender pursuant to clause (a) of such definition. | 42Fees
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This Agreement may be amended only by a written agreement signed by the Company and the Director. However, the Company may unilaterally amend this Agreement to conform with written directives to the Company from its auditors or banking regulators or to comply with legislative or tax law, including without limitation Section 409A of the Code and any and all regulations and guidance promulgated thereunder. | 2Amendments
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No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement. | 15Brokers
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Executive acknowledges and agrees that, subject to receipt of Executive’s Severance Benefits, his employment and service ended effective as of the Date of Termination (as defined in the Severance Agreement), including with respect to all of the offices, directorships, appointments and other positions he holds with the Company and all of its parents, subsidiaries, and affiliates. Executive hereby acknowledges that he received adequate notice of termination and is not entitled to any “cure” period or pay in lieu of notice, beyond what he has already been provided pursuant to the Letter Agreement. | 88Terminations
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Each provision of this Agreement shall be construed as separable and divisible from every other provision, and the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision. Except as otherwise set forth in this Agreement, in the event that a court, arbitrator or other body of competent jurisdiction holds any provision of this Agreement to be invalid, illegal, void or less than fully enforceable as to time, scope or otherwise, the parties agree that such provision shall be construed by limiting and reducing it to the minimum extent necessary to render such provision valid, legal and enforceable while preserving to the greatest extent permissible the original intent of the parties; the remaining terms and conditions of this Agreement shall not be affected by such alteration and shall remain in full force and effect. Notwithstanding the foregoing, in the event that any one or more of the covenants set forth in Section 5 of this Agreement are found to be unenforceable against the Grantee to any extent by the final non-appealable resolution of any litigation or other legal proceeding stemming from an actual, threatened, or attempted violation of such covenants by Grantee , then the entire Option (both vested and unvested) shall be deemed to have terminated and the Option (both vested and unvested) shall not be exercisable and no Common Shares shall be issuable in connection therewith as of the date of such finding. | 79Severability
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The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, such restriction shall be enforced to the maximum extent permitted by Legal Requirement. | 79Severability
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The term of the Lease shall commence on the later of (a) July 1, 2017, or (b) the date Landlord delivers the Upper Floors to Tenant (the “ Commencement Date ”) and expires on the date that is two hundred forty (240) full calendar months following the Rent Commencement Date for the Upper Floors. | 89Terms
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Guarantor agrees to the provisions of the Loan Documents, and, except as specifically set forth herein, hereby waives notice of: (a) any loans or advances made by Lender to Borrower, (b) acceptance of this Guaranty, (c) any amendment or extension of the Note, the Security Instrument or of any other Loan Documents, (d) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Collateral, (e) the occurrence of any breach by Borrower or an Event of Default, (f) Lender’s transfer or disposition of the Guaranteed Obligations, or any part thereof, (g) sale or foreclosure (or posting or advertising for sale or foreclosure) of any Collateral for the Guaranteed Obligations, (h) protest, proof of non-payment or default by Borrower or (i) any other action at any time taken or omitted by Lender, and, generally, all demands and notices of every kind in connection with this Guaranty, the Loan Documents, any documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and the obligations hereby guaranteed. | 97Waivers
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Compliance with the covenants in this Section 6.11 shall be measured by the information contained in any financial statements required to be furnished to Lender under Section 6.4 (and with any adjustments required as a result of the definitions of financial terms contained herein), or, if Lender deems it necessary or advisable to measure compliance based on other sources of information, in any other source reasonably deemed necessary or advisable by Lender. | 46General
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Subject to the terms and conditions set forth herein, in addition to the Revolving Credit Loans provided for in Section 2.01(a), the Company may request the issuance of Letters of Credit for its own account by an Issuing Lender, in a form reasonably acceptable to such Issuing Lender, at any time and from time to time during the Revolving Credit Availability Period on any date falling more than five Business Days prior to the Revolving Credit Termination Date. Letters of Credit issued hereunder shall constitute utilization of the Revolving Credit Commitments. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, an Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control. | 46General
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All captions, titles and headings to sections, subsections, paragraphs, exhibits or other divisions of this Agreement, and the table of contents, are only for the convenience of the Parties and shall not be construed to have any effect or meaning with respect to the other contents of such sections, subsections, paragraphs, exhibits or other divisions, such other content being controlling as to the agreement among the Parties. | 48Headings
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This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement or of a Lender Addendum by facsimile transmission or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. | 26Counterparts
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Each Party warrants and represents that such Party has full and complete authority to enter into this Agreement and each person executing this Agreement on behalf of a Party warrants and represents that he has been fully authorized to execute this Agreement on behalf of such Party and that such Party is bound by the signature of such representative. | 9Authority
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The capitalization of the Company is as set forth on Schedule 3.1(g) , which Schedule 3.1(g) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as disclosed in Schedule 3.1(g), there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The company does not have any stock appreciation rights or “phantom stock” plans or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. Except as disclosed in Schedule 3.1(g), there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. | 16Capitalization
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In the event any provision or section of the Agreement conflicts with the applicable law, such conflict shall not affect the provisions of the Agreement, which can be given effect without the conflicting provisions. | 79Severability
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The Company and its Subsidiaries, on a Consolidated basis, are Solvent. No Obligor is planning to take any action described in Section 11.1(h) . | 80Solvency
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Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms shall have the meanings assigned to them in this Section 1 . | 29Definitions
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All representations, warranties, covenants, and agreements of Guarantors in this Guaranty Agreement shall survive the execution of this Guaranty Agreement. | 85Survival
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To the fullest extent permitted by law, this Agreement shall not be assigned by either Party without the prior written consent of the other Party; provided that FCCG shall be entitled to assign all or any part of this Agreement to any transferee of all of its Shares, and such transferee shall, as a condition to such transfer, agree to perform FCCG’s obligations hereunder with respect to such Shares. The terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and FCCG and their respective successors and permitted assigns. | 7Assignments
|
(a) Guarantor hereby waives, to the fullest extent permitted under applicable law, promptness, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Lender protect, secure, perfect or insure any lien or any collateral subject thereto or exhaust any right or take any action against Borrower or any other guarantor or surety for the Obligations, or any collateral securing the Obligations; (b) Guarantor waives, to the fullest extent permitted under applicable law, any right to revoke this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future; and (c) Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in this Section 3 are knowingly made in contemplation of such benefits. | 97Waivers
|
This Consent shall be binding upon and inure to the benefit of the parties hereto, and their heirs, successors and assigns. | 13Binding Effects
|
Each of the FTAI Group Members has title in fee simple or good and valid title, as the case may be, to, or a valid leasehold interest in, or easements or other limited property interests in, all its real or immoveable property necessary in the ordinary conduct of its business, and good title to, or a valid leasehold interest in, or valid license of or other right to use, all its other Property necessary for the conduct of its business as currently conducted, in each case except where the failure to have such title, interest, license or right could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and none of such Property is subject to any Lien except as permitted by Section 6.2. | 57Liens
|
If any provision of this Agreement is inoperative or unenforceable for any reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatsoever, so long as this Agreement, taken as a whole, still expresses the material intent of the parties hereto. The invalidity of any one or more phrases, sentences, clauses, Sections or subsections of this Agreement shall not affect the remaining portions of this Agreement. | 79Severability
|
All capitalized terms used but not defined herein shall have the meaning ascribed to them in the Sublease. | 28Defined Terms
|
Buyer shall be entitled to deduct and withhold from the Purchase Price otherwise payable pursuant to this Agreement such amounts as Buyer is required to deduct and withhold with respect to such payment under the Code, or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld by Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made. | 99Withholdings
|
This Agreement and all documents which have been or may be hereinafter furnished by Borrower to the Bank may be reproduced by the Bank by any photographic, photostatic, microfilm, xerographic or similar process, and any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business). The Bank may refer to Borrower and this financing transaction in general terms in connection with any marketing material undertaken by the Bank. Borrower shall not issue any press releases or other disclosure regarding this financing transaction without the prior written consent of the Bank. | 31Disclosures
|
The Company’s representations and warranties contained in Article III hereof shall be true and correct at and as of the Closing as though made as of the Closing Date (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) . The Company shall have performed and complied in all material respects with all of the covenants, agreements and conditions contained in this Agreement required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. In the event the Closing Date occurs after the date of this Agreement, the Holder shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect in the form attached hereto as Exhibit C . | 76Representations
|
Employee is engaged and shall serve as President and Chief Executive Officer of (i) Parent, (ii) Employer and (iii) any other direct or indirect subsidiaries of Parent that may be formed or acquired. Furthermore, Employee shall be Chairman of the Board so long as Employee is the President and Chief Executive Officer of Parent. In addition, Employee shall have such other duties and hold such other offices as may from time to time be reasonably assigned to him by the Board. These services shall be provided from offices located in Alice, Texas or such other location as may be mutually agreed. | 32Duties
|
The agreements in this Section and the indemnity provisions of Section 10.02(d) shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all the other Secured Obligations. | 85Survival
|
Notwithstanding the provisions of Section 2.3 and Section 4.3(a) hereof, the parties agree to work together in good faith to implement the provisions of such sections and any acts contemplated thereby in a manner that does not alter the economic arrangement among the parties, but that is tax efficient for the parties, taking into account the various jurisdictions that have taxing authority over the parties. | 24Cooperation
|
Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission to so notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party other than under this Section 2.05 . In any action brought against any indemnified party, it shall notify the indemnifying party of the commencement thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.05 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however , that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the indemnified party or (ii) if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the indemnified party shall have concluded that there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, then the indemnified party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, no indemnifying party shall settle any action brought against any indemnified party with respect to which such indemnified party is entitled to indemnification hereunder without the consent of the indemnified party, unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, the indemnified party. | 65Notices
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(a) Maintain, with insurers that Borrower believes in good faith are financially sound and reputable, insurance, to such extent and against such risks as is customary with companies in the same or similar businesses operating in the same or similar locations in similar circumstances, including insurance with respect to Mortgaged Properties against such casualties and contingencies and of such types and in such amounts with such deductibles and provisions for minimum claim amounts as is customary in the case of similar businesses operating in the same or similar locations, and will furnish to the Administrative Agent, upon its written request, information presented in reasonable detail as to the insurance so carried; provided that with respect to physical hazard insurance, following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall be entitled to agree to the adjustment of any claim thereunder without the consent of any Company. Each such policy of insurance shall as appropriate, (i) name the Collateral Agent, on behalf of the Lenders, as an additional insured thereunder as its interests may appear and/or (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Lenders, as lender’s loss payee thereunder. | 51Insurances
|
Each of the Parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly, each of the Parties agrees that, without posting a bond or other undertaking, the other Parties may seek an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Action instituted in any court specified in Section 3.26 or in an arbitration proceeding pursuant to Section 3.25. An Action for specific performance as provided herein shall not preclude a Party from pursuing any other remedy to which such Party may be entitled, at law or in equity, in accordance with the terms of this Agreement. Each Party further agrees that, in the event of any Action for specific performance in respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate provided , however , each Party also agrees that any Party can assert any other defense it may have other than the defense of adequate remedy at law. The provisions of this Section 3.27 shall not apply to any Action based upon any Section of this Agreement where the remedy sought is the payment of money. | 81Specific Performance
|
The rights and obligations of the parties under this Loan Agreement shall not be assigned by a Borrower without the prior written consent of the Lender. Subject to the foregoing, this Loan Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in this Loan Agreement express or implied, shall give to any Person, other than the parties to this Loan Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Loan Agreement. The Lender may from time to time assign (x) with respect to the Tranche A Advances, solely with the consent of the SBA and subject to the Multiparty Agreement, and (y) with respect to the Tranche B Advances subject to the following restrictions, all or a portion of its rights and obligations under this Loan Agreement and the Loan Documents pursuant to an executed assignment and acceptance by the Lender and assignee (“ Assignment and Acceptance ”), specifying the percentage or portion of such rights and obligations assigned; provided that to the extent no Event of Default shall have occurred and be continuing, the Lender shall not make an assignment to a Competitor. Upon such assignment, (a) such assignee shall be a party hereto and to each Loan Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of the Lender hereunder, and (b) the Lender shall, to the extent that such rights and obligations have been so assigned by it be released from its obligations hereunder and under the Loan Documents. Unless otherwise stated in the Assignment and Acceptance, each Borrower shall continue to take directions solely from the Lender unless otherwise notified by the Lender in writing. The Lender may distribute to any prospective assignee any document or other information delivered to the Lender by a Borrower. | 7Assignments
|
To the extent permitted by applicable law, any controversy or dispute arising out of, or relating to, this Agreement, or any alleged breach hereof, the parties voluntarily agree that said disputes shall be settled exclusively by arbitration in Pittsburgh, Pennsylvania, in accordance with Pennsylvania law, and shall be conducted in accordance with the Rules of the American Arbitration Association then in effect. The parties hereby consent to the jurisdiction of the courts of the Commonwealth of Pennsylvania and of the United States District Court for the Western District of Pennsylvania for all purposes in connection with the arbitration. The arbitrator shall be selected by the Executive and Company, the parties. In the event that the parties cannot agree on the arbitrator within thirty (30) days following receipt by one party of a demand for arbitration from another party, then the Arbitrator shall be selected by the American Arbitration Association. The Arbitrator shall convene a hearing no later than thirty (30) days following the selection. The arbitration award shall be final and binding upon both parties without any right of appeal by either of the parties. Judgment may be entered and execution issued in any court of competent jurisdiction. The Company shall pay the total cost of the Arbitrator’s professional fees and related expenses. The parties further agree that arbitration proceedings must be instituted within one year after the claimed breach occurred, and that failure to institute arbitration proceedings within such period shall constitute an absolute bar to the institution of any proceedings and the waiver of all claims. | 6Arbitration
|
All disputes that arise from or relate to this Letter Agreement shall be decided exclusively by binding arbitration in Cook County, Illinois under the Commercial Arbitration Rules of the American Arbitration Association. The parties agree that the arbitrator’s award shall be final, and may be filed with and enforced as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing, any disputes related to the enforcement of the restrictive covenants contained in this Letter Agreement shall be subject to and determined under Delaware law and adjudicated in Illinois courts. | 94Venues
|
If any provision of this Agreement or the Note or the application thereof to any party thereto shall be invalid or unenforceable to any extent, (i) the remainder of this Agreement and the Note, and (ii) the application of such invalid or unenforceable provisions to any other person thereto, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. | 79Severability
|
The Consultant shall not be entitled to any of the Company's employee benefits, including without limitation, medical, dental, vision, vacation pay, sick leave, group insurance, and other fringe benefits. The Consultant acknowledges that it is the Consultant's responsibility (financial and otherwise) to obtain its own medical, dental, vision, and liability insurance. The Consultant shall not be compensated for any holidays or vacation days. | 12Benefits
|
Except as disclosed on Schedule 5.23 , Seller owns or has the right to use, free and clear of all Liens, all Intellectual Property necessary to conduct the Business as presently conducted except where the failure to so own or have such rights, or the presence of such Liens, does not have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of Seller, no third Person is currently infringing upon, misappropriating, diluting or otherwise violating the Intellectual Property used in the Business. The operation of the Business has not and does not materially infringe, misappropriate, dilute or otherwise violate the Intellectual Property of any third Person. No claim is pending or, to the Knowledge of Seller, has been threatened against Seller, and Seller has not received any written threat, charge, claim, demand, notice or complaint, in each case within the last three (3) years, challenging the use or ownership by Seller of any Intellectual Property used in the Business or alleging that the operation of the Business infringes, misappropriates, dilutes or otherwise violates the Intellectual Property of any third Person (including any claim that Company must license any Intellectual Property of any third Person). | 53Intellectual Property
|
Each party’s obligations under this Section 2.22 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. | 85Survival
|
In the event that any provision of the Plan shall be declared illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of the Plan but shall be fully severable, and the Plan shall be construed and enforced as if such illegal or invalid provision had never been a part of the Plan. | 79Severability
|
All Revolving Loans made or Letter of Credit Accommodations provided to or for the benefit of Borrower pursuant to the provisions hereof shall be used by Borrower (i) to finance the payment in full of any remaining outstanding Pre-Petition Obligations no later than one (1) Business Day after the Final Order Entry Date, (ii) to fund the Carve Out (limited, after delivery of the Carve Out Trigger Notice, to the Post-Trigger Carve Out up to the Carve Out Cap), and (iii) subject to the Approved Budget (subject to the Permitted Variance), for general corporate purposes of Borrower not otherwise prohibited by the terms hereof. The FILO Loans shall be used solely for the purpose set forth in Section 2.1(a) hereof. None of the proceeds of the Loans or Letter of Credit Accommodations will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security or for the purposes of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Loans to be considered a “purpose credit” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, as amended. In addition, none of the proceeds of the Loans or Letter of Credit Accommodations or the Carve Out shall be used for the payment of fees or expenses of any Person challenging the Pre-Petition Obligations or the Pre-Petition Liens or pursuing or prosecuting any claims or actions against the Pre-Petition Agent or Pre-Petition Lenders, including any claim under Chapter 5 of the Bankruptcy Code in respect of the Pre-Petition Credit Agreement. | 92Use Of Proceeds
|
All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. | 65Notices
|
This Agreement shall become effective only upon the occurrence of the Redemption. | 33Effective Dates
|
(i) The proceeds of the Term Loans made on the Closing Date shall be used to fund the Closing Date Cash Transfer, to pay fees and expenses related to Transactions and the Spin-Off and for general corporate purposes of the Borrower and its Subsidiaries (including for the consummation of any Acquisitions, Investments and Capital Expenditures not prohibited by this Agreement), and (ii) the proceeds of the Revolving Credit Loans made and the Letters of Credit issued hereunder on or after the Closing Date may be used, together with the proceeds of any Incremental Term Loans made after the Closing Date, for general corporate purposes of the Borrower and its Subsidiaries (including for the consummation of any Acquisitions, Investments and Capital Expenditures not prohibited by this Agreement), provided that up to $225,000,000 of the proceeds of the Revolving Credit Loans may be used on the Closing Date to fund the Closing Date Cash Transfer and to pay fees and expenses related to the Transactions and the Spin-Off. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of Regulations T, U or X. | 92Use Of Proceeds
|
The Company agrees that it will not issue any press release or authorize any person make any official public statement that disparages you; provided however , that nothing in the foregoing shall be deemed to prevent the Company from complying with its disclosure obligations under applicable law, legal process, subpoena, the rules of any stock exchange, or legal requirement or as part of a response to an request for information from any governmental authority with jurisdiction over the party from whom information is sought. You agree that you will not issue any press release or make any other public statements that disparage the Company; provided however , that nothing in the foregoing shall be deemed to prevent you from complying with your disclosure obligations under applicable law, legal process, subpoena, the rules of any stock exchange, or legal requirement or as part of a response to an request for information from any governmental authority with jurisdiction over the party from whom information is sought. | 64Non-Disparagement
|
(a) Faithfully preserve and protect (i) any Lien created or intended to be created under the Collateral Documents, and (ii) the a valid and enforceable perfected first-priority security interest under the UCC in the Collateral, whether now owned or hereafter acquired (subject only to Permitted Liens). | 45Further Assurances
|
Unclaimed amounts shall consist of the amounts of the Deferral Accounts of a Participant that are not distributed because of the Company’s inability, after a reasonable search, to locate a Participant or his Beneficiary, as applicable, within a period of two (2) years after the date upon which the payment of any benefits becomes due. Unclaimed amounts shall be forfeited at the end of such two-year period. These forfeitures will reduce the obligations of the Company under this Plan and the Participant or Beneficiary, as applicable, shall have no further right to his Deferral Accounts. | 44Forfeitures
|
This Amendment may be executed by one or more of the parties to this Amendment in any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument. Delivery of counterparts by facsimile or electronic mail shall be deemed equally effective as delivery of originals. | 26Counterparts
|
None of the officers or directors of the Parent and, to the knowledge of the Parent, none of the employees of the Parent is presently a party to any transaction with the Parent 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, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Parent, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. | 91Transactions With Affiliates
|
This Note will not bear interest and will be interest free. | 54Interests
|
This Amendment shall be governed by, and construed in accordance with, the laws of the State of Nebraska, without regard to its principles of conflict of laws. | 47Governing Laws
|
From time to time, at the expense of the Lessees, promptly execute and deliver all further instruments and documents, and take all further action that the Lessee Representative may reasonably request, in order to perfect, protect or more fully evidence the purchases, sales and assignments and security interests hereunder or under the other Transaction Documents, or to enable the Lessees or any Affiliate thereof to exercise or enforce any of their respective rights hereunder and under the other Transaction Documents. Without limiting the generality of the foregoing, the Buyer will upon the request of the Lessee Representative authorize and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, and take such other actions, as may be necessary or appropriate to perfect and protect any Liens granted by the Buyer to the Lessees. | 45Further Assurances
|
Each of the parties acknowledges and agrees that either party may terminate the Executive’s employment at any time, for any reason, with or without Cause (as hereinafter defined). Such termination shall be effected by the Company or the Executive, as applicable, by giving notice in the manner provided in Section 3(j) before the end of a calendar month, whilst observing in the case of any termination of employment pursuant to Section 3(d) or Section 3(e), a notice period of six months by the Executive and 12 months by the Company. | 46General
|
If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing. | 87Taxes
|
Each person executing this Agreement on behalf of a Party has the authority of the entity to execute this Agreement. | 9Authority
|
This Agreement, for all purposes, shall be construed in accordance with the laws of the State of Ohio without regard to conflicts of law principles. Except to obtain equitable relief, any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in Cuyahoga County, Ohio. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. | 94Venues
|
Company and each Retail Entity is Solvent. | 80Solvency
|
The Guarantor agrees to be jointly and severally liable for the payment of all reasonable fees and expenses, including Attorney Costs, incurred by any Floorplan Secured Party in connection with the enforcement of this Guaranty Agreement, whether or not suit be brought. | 41Expenses
|
If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.12 is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. The Sellers expressly acknowledge and agree that the restrictions imposed by this Section 6.12 are reasonable with respect to subject matter, time period and geographical area and that the Purchaser would not have entered into this Agreement and would not consummate the transactions contemplated hereby without the restrictions contained in this Section 6.12 . Each of the covenants contained in this Section 6.12 is intended by each Party hereto to be, and shall be construed as, agreements independent of any other provision in this Agreement, and the existence of any claim or cause of action of any Seller against the Purchaser, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Purchaser or either Company of any applicable covenant contained in this Section 6.12 . | 37Enforcements
|
Unless otherwise specified in this Agreement, all indemnification payments required to be made under this Agreement shall be made within 20 days of the date of receipt by the indemnifying party of written notice of the amount owed, together with reasonable documentation showing the basis for the calculation of such amount and evidence of payment of such amount by the indemnified party. | 68Payments
|
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