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This Agreement will be governed by and construed in accordance with the Laws of the State of California applicable to contracts made and to be performed entirely within such State. | 47Governing Laws
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The parties hereby consent to the jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts. Accordingly, with respect to any such court action, the Employee (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. | 21Consent To Jurisdiction
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All notices and other communications pursuant to this letter agreement must be in writing and must be given by personal or courier delivery, e-mail or first class mail, certified or registered with return receipt requested, and will be deemed to have been duly given upon receipt if personally delivered or delivered by courier, on the date of transmission if transmitted by e-mail, or three (3) business days after mailing if mailed, to the addresses of the Company and you contained in the records of the Company at the time of such notice. Any party may change such party’s address for notices by notice duly given pursuant to this Section 17. | 65Notices
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The Borrower will not, and will not permit any Subsidiary to, enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred. | 77Sales
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This Agreement (including any amendments and exhibits hereto) constitutes the entire agreement between the Parties and Payor with respect to its subject matter, and supersedes all prior and/or contemporaneous oral or written negotiations, offers, representations, warranties, and agreements with respect to this subject matter. | 52Integration
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Except for Roofstock, Inc. and its wholly-owned subsidiaries (collectively, “ Roofstock ”), no investment banker, broker, finder or other intermediary has been retained by or is authorized to act on behalf of Seller or any Acquired Company who is entitled to any fee or commission in connection with the transactions contemplated by this Agreement. Seller is solely responsible for the payment of any commission, finder’s fee or other sum payable to Roofstock in connection with the transactions contemplated by this Agreement. | 15Brokers
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From and for a period of twelve (12) months after the Closing, no Seller shall divulge or convey to any Person (other than Purchaser and its subsidiaries (including the Company), any Business Confidential Information. In this regard, the Company and the Sellers acknowledge that the Purchaser’s common stock is publicly traded and that any Business Confidential Information obtained by the Company and the Sellers regarding Purchaser will be considered to be material non-public information within the meaning of federal and state securities Laws. Accordingly, the Company and the Sellers acknowledge and agree not to engage in any transactions in Purchaser Common Stock in violation of applicable Laws. | 20Confidentiality
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The failure of any party to insist upon strict adherence to any term or condition of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in a writing signed by the party to be charged with such waiver. | 97Waivers
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Except as disclosed to Lender in the Litigation Summary attached hereto as Exhibit C approved by Lender, there shall be no bankruptcy, foreclosure action or other material litigation or judgments pending or outstanding against Borrower, the Guarantor or any Affiliates (each a " Material Party "), or the Timeshare Project . Material litigation shall not include matters in which (a) a Material Party is plaintiff and no counterclaim is pending or (b) Lender determines in its sole discretion that such litigation is immaterial due to settlement, insurance coverage, frivolity or amount of claim. | 58Litigations
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Except as set forth on Schedule 3.1(p) of the Disclosure Schedules, the Company has, or has 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 as necessary or required for use in connection with their respective businesses and which the failure to so have could have a Material Adverse Effect (collectively, the “ Intellectual Property Rights ”). The Company has not received a written notice, or otherwise has knowledge of the fact, 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. The Company has not 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 has 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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Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby. Each party ( i ) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and ( ii ) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this Section 5(k). | 96Waiver Of Jury Trials
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The term of the Company shall commence on the date hereof and shall continue perpetually from the date hereof unless sooner terminated pursuant to the provisions of this Agreement. | 89Terms
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The Company hereby employs Keown, and Keown accepts employment from the Company, on the terms and conditions herein stated. | 35Employment
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The Borrower agrees that, in addition to disclosures made in accordance with standard banking practices, any Lender may disclose information obtained by such Lender pursuant to this Agreement to assignees or participants and potential assignees or participants hereunder, provided that such Lender first obtains a written confidentiality agreement in favor of the Borrower from the recipient of any such information as required by §30 hereof. Any such disclosed information shall be treated by any assignee or participant and potential assignees or participants with the same standard of confidentiality set forth in §30 hereof. | 31Disclosures
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This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts shall constitute one and the same instrument. Delivery of this Agreement may be accomplished by electronic facsimile reproduction (" FAX ") or via electronic mail via .PDF (" PDF "); if FAX or PDF delivery is utilized, the electronic version shall have the same force and effect as the original. | 26Counterparts
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You hereby represent, acknowledge, and agree that you have, prior to signing this Agreement, fully disclosed to the Chief Executive Officer and Chief Financial Officer of the Company all information that you possess with respect to any violations, or potential violations, of the securities laws or any other laws and regulations with which the Company has an obligation to comply. | 31Disclosures
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Upon your Termination of Employment for any reason, other than your death, Disability or Retirement, any and all unvested PSUs underlying this Award, together with any and all unvested accumulated Dividend Equivalents, shall automatically be cancelled for no consideration, and shall cease to be outstanding. | 44Forfeitures
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(a) This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 of the New York General Obligations Law shall apply. | 96Waiver Of Jury Trials
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This Agreement constitutes the entire agreement between the parties hereto with respect to the transactions contemplated herein, and may be amended or modified only by an instrument in writing signed by the parties hereto. | 38Entire Agreements
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Trustor shall indemnify and hold Beneficiary and the other Indemnified Parties harmless from and against any and all Hazardous Substance Claims and Losses. Any amounts paid or required to be paid by any Indemnified Party in connection with any Hazardous Substance Claims and Losses (a) shall be due and payable by Trustor to such Indemnified Party within five (5) days of such Indemnified Party’s demand (which demand shall be accompanied by evidence in reasonable detail of such amounts by the Indemnified Party); and (b) shall bear interest from the date such amounts are due and payable by Trustor at the Default Rate. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor’s obligations under this Paragraph 5.06 shall survive and remain effective (i) following the repayment of the obligations secured by this Deed of Trust and the reconveyance of the Property under this Deed of Trust; and (ii) following any foreclosure, deed in lieu of foreclosure, or similar proceeding through which Beneficiary or any other Person obtains title to the Property. Without limiting any of the terms of the Loan Documents, each of the Indemnified Parties, in its reasonable discretion (x) shall have the right to select, retain and direct attorneys, accountants, consultants, and experts acceptable to such Indemnified Party to represent or advise it in connection with any of the Hazardous Substance Claims and Losses (provided, however, that each of the Indemnified Parties shall cooperate with Trustor to avoid any unreasonable duplication of efforts and unnecessary costs and expenses, and until an Event of Default occurs, Trustor, subject to the reasonable approval of the Indemnified Parties, may hire and engage such parties and shall take the lead in all matters), and all reasonable out-of-pocket costs, fees expenses and advances made or incurred by such Indemnified Party in connection therewith shall be deemed to be included in the Hazardous Substance Claims and Losses; and (y) following the occurrence of an Event of Default, shall have the right to settle, compromise, adjust, and pay any or all of the Hazardous Substance Claims and Losses asserted against or incurred or suffered by it for such amounts and on such terms as the Indemnified Party may reasonably determine. Nothing contained in this Deed of Trust shall be deemed to obligate any Indemnified Party to pay any Hazardous Substance Claims and Losses. | 50Indemnity
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Subject to the next two sentences, during the Term you will be eligible to participate in all retirement, health, and welfare programs made available or sponsored by SHO on a basis no less favorable than SHO’s other executive officers, in accordance with the applicable terms, conditions, and availability of those programs. You will not be eligible to participate in the Sears Hometown and Outlet Stores, Inc. Annual Incentive Plan, the Sears Hometown and Outlet Stores, Inc. Long-Term Incentive Program, or in any other SHO bonus plan, program, or arrangement. Except as provided in paragraph 2, you also will not be eligible to participate in any SHO severance plan, program, or arrangement or otherwise be entitled to receive severance or any other compensation at the end of the Term or at any other time. | 12Benefits
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This Agreement may not be amended or modified in any respect except by a written agreement signed by SpinCo, RemainCo (so long as RemainCo owns any Common Stock) and the Holders of a majority of the then outstanding Registrable Securities. | 2Amendments
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The Securing Parties agree that to the extent the Collateral Agent is required by applicable law to give reasonable prior notice of any sale or other disposition of any Collateral, ten Business Days’ notice shall be deemed to constitute reasonable prior notice. | 65Notices
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Borrower and Guarantor are each solvent. No transfer of property is being made by Borrower or Guarantor and no obligation is being incurred by Borrower or Guarantor in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of Borrower or Guarantor. | 80Solvency
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On the date of such extension there shall exist no Default or Event of Default. | 62No Defaults
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(a) At such time as the Loans, the Reimbursement Obligations and the other Obligations (other than Obligations in respect of Specified Swap Agreements) shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Administrative Agent shall deliver to such Grantor any Collateral held by the Administrative Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination. | 74Releases
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THIS AMENDMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402 . | 47Governing Laws
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All cash amounts to be paid or deposited by Transferee hereunder shall be paid or deposited in accordance with the terms hereof on the day when due in immediately available funds to the account of the related Originator designated from time to time by such Originator or as otherwise directed by such Originator. In the event that any cash payment owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment shall be made on the next succeeding Business Day. If any Person fails to pay or deliver any cash or other amount hereunder when due, such Person agrees to pay, on demand, the Default Fee in respect thereof until paid in full; provided , however , that such Default Fee shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. | 68Payments
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Payments in respect of any RSUs that vest in accordance herewith shall be made to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and any fractional Share will be rounded as determined by the Company; provided, however , that in no event shall the aggregate number of RSUs that vest or become payable hereunder exceed the total number of RSUs set forth in Section 1 of this Agreement. The Company shall make such payments as soon as practicable after the applicable vesting date, but in any event within sixty (60) days after such vesting date. | 68Payments
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Borrower irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in California, over any suit, action or proceeding arising out of or relating to this Agreement. Borrower irrevocably waives to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Borrower irrevocably appoints the Secretary of State of the State of California as its authorized agent to accept and acknowledge on its behalf any and all process which may be served in any such suit, action or proceeding, consents to such process being served (i) by mailing a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to Borrower’s address shown above or as notified to the Lender and (ii) by serving the same upon such agent, and agrees that such service shall in every respect be deemed effective service upon Borrower. | 94Venues
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This Agreement is binding on and for the benefit of the parties hereto and their respective successors, heirs, executors, administrators and other legal representatives. Neither this Agreement nor any right or obligation hereunder may be assigned by the Employee. | 7Assignments
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Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor, to the Company’s Knowledge, any other Person acting on its behalf has provided any of the Investors with any information that it believes constitutes material, non-public information that will not otherwise be disclosed in the SEC Filings on or prior to the Closing Date. The Company understands and confirms that the Investors will rely on the foregoing representation in effecting transactions in securities of the Company. | 31Disclosures
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The Borrower shall execute and deliver to Agent and the Revolving Credit Lenders such additional documents (including, without limitation, amendments to the Security Documents), instruments, certifications and opinions as the Agent may reasonably require, including, without limitation, a Compliance Certificate, demonstrating compliance with all covenants set forth in the Loan Documents after giving effect to the increase, and the Borrower shall pay the cost of any mortgagee’s title insurance policy or any endorsement or update thereto or any updated UCC searches, all recording costs and fees, and any and all intangible taxes or other documentary or mortgage taxes, assessments or charges or any similar reasonable fees, taxes or expenses which are reasonably requested in connection with such increase. | 41Expenses
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No Default or Event of Default other than the Interest Default shall have occurred and be continuing as of the date the condition set forth in Section 3(a) is satisfied. | 62No Defaults
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Statement ”), setting forth a reasonably detailed proposed final calculation of the Inventory as of the Closing Date (the “ Closing Date Inventory ”), and the Closing Date Inventory Adjustment Amount, together with reasonably detailed supporting information. If the Closing Date Inventory is less than the Target Inventory, the amount equal to such difference is the “ Closing Date Inventory Deficiency .” If the Closing Date Inventory is greater than the Target Inventory, the amount equal to such difference is the “ Closing Date Inventory Excess .” The Closing Date Inventory Excess, if any, shall be capped at One Hundred Thousand Dollars ($100,000). | 18Closings
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Subject to the terms and conditions set forth herein (including Section 2.22 ), each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.05 , to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the Borrower’s own account (or for the account of any other Subsidiary of the Borrower so long as the Borrower and such other Subsidiary are co-applicants in respect of such Letter of Credit), in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, which shall reflect the standard operating procedures of such Issuing Bank, at any time and from time to time during the Revolving Availability Period and prior to the fifth Business Day prior to the Revolving Maturity Date. 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 Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. | 46General
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The laws of the State of New York shall govern the interpretation, validity and performance of the terms of this Agreement, without regard to conflicts of law doctrines (other than Sections 5-1401 and 1-402 of the New York Business Corporation Law). | 4Applicable Laws
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The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. The Parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise this Agreement and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any amendments thereto. The word “including” shall be construed to include the words “without limitation.” In this Agreement, unless the context otherwise requires, references to the singular shall include the plural and vice versa. The word “Company” shall be construed to include the Company and its subsidiaries and affiliates, whether now existing or hereafter established. | 23Construction
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Due Upon Any Termination . Upon any termination of Executive’s employment with the Corporation, the Corporation shall provide to Executive: (i) any unpaid base salary earned under Part Two - 3 for services rendered through the date of the termination, and (ii) the dollar value of all accrued and unused vacation benefits based upon Executive’s most recent level of base salary, and (iii) any bonus amount actually earned and vested at the time of such termination but not previously paid to Executive. In addition, except as otherwise provided in Part Three - 2.D, Part Four - 2.D, and Part Five - 1 of this Agreement, Executive’s outstanding Equity Awards, if any, shall be governed by the terms of the applicable award agreement and the Plan. Notwithstanding the foregoing, any vested amounts deferred by Executive under one or more of the Corporation’s non-qualified deferred compensation programs or arrangements subject to Section 409A that remain unpaid on the date of such termination of Executive’s employment shall be paid at such time and in such manner as set forth in each applicable plan or agreement, subject, however, to the deferred payment provisions of Part Five - 3. | 68Payments
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This Letter Agreement constitutes and contains the entire agreement of the Company and the Parent with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof. | 38Entire Agreements
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The rights and obligations of the parties under this Agreement shall survive as provided herein or if necessary or desirable to accomplish the purposes of other surviving provisions following the termination of Executive’s employment with the Company or any Successor, regardless of the manner of or reasons for such termination. | 85Survival
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Mortgagor shall maintain or cause to be maintained, insurance with respect to the Mortgaged Property in accordance the Credit Agreement , provided, however, that Mortgagor shall not be required to obtain hazard insurance coverage against risks to improvements in an amount exceeding the replacement value of the improvements . Mortgagor shall purchase a Federal Emergency Management Agency Standard Flood Hazard Determination Form for the Mortgaged Property, and if any portion of the Improvements is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then Mortgagor shall maintain, or cause to be maintained, flood insurance in an amount as required by law and reasonably satisfactory to Mortgagee and in no event less than the maximum limit of coverage available under the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, each as amended from time to time. | 51Insurances
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The Company shall take all necessary actions and proceedings as may be required by applicable law, rule and regulation, for the legal and valid issuance (free from any restriction on transferability under federal securities laws) of the Warrant Shares to JGBWL or the subsequent holders. | 19Compliance With Laws
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To the extent any Agent is not reimbursed and indemnified by Loan Parties, each Lender will reimburse and indemnify such Agent in proportion to its respective portion of the outstanding Advances and its respective Participation Commitments in the outstanding Letters of Credit and outstanding Swing Loans (or, if no Advances are outstanding, pro rata according to the percentage that its Revolving Commitment Amount constitutes of the Total Revolving Commitment), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent in performing its duties hereunder, or in any way relating to or arising out of this Agreement or any Other Document; provided that Lenders shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross (not mere) negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment). | 49Indemnifications
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Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Lease and First Amendment. | 28Defined Terms
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This Agreement and any attached consents, schedules, or exhibits requiring signatures may be executed in counterparts, and all counterparts shall constitute but one and the same document. | 26Counterparts
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The Company or any of its subsidiaries or affiliates may withhold from the First Retention Bonus or the Second Retention Bonus all federal, state, city or other taxes as the Company or such subsidiary or affiliate is required to withhold pursuant to any applicable law, regulation or ruling. Notwithstanding any other provision of this letter agreement, neither the Company nor any of its subsidiaries or affiliates shall be obligated to guarantee any particular tax result for you with respect to the First Retention Bonus or the Second Retention Bonus, and you shall be responsible for any taxes imposed on you with respect to any such payment. | 86Tax Withholdings
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The parties hereto agree that all understandings and agreements heretofore made between them with respect to the subject matter hereof are merged into this Agreement and any schedules and exhibits attached hereto (collectively, the “ Transaction Documents ”), which fully and completely express their agreement with respect to the subject matter hereof. There are no promises, agreements, conditions, understandings, warranties or representations, oral or written, express or implied, among the parties hereto, other than as set forth in the Transaction Documents. All prior agreements among the parties hereto with respect to the subject matter hereof are superseded by the Transaction Documents, which integrate all promises, agreements, conditions and understandings among the parties hereto with respect to the matters contained herein. | 38Entire Agreements
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No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000 the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000 the fair market value of the assets of all such underfunded Plans. | 39Erisa
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No financial statement, material report, material certificate or other material information furnished (whether in writing or orally), taken together as a whole with all SEC filings made from time to time by the Company, by or on behalf of any of the Company or any of its Subsidiaries to the Administrative Agent in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, pro forma financial information, estimated financial information and other projected or estimated information, the Company only represents that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. | 31Disclosures
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During the Term, the Executive shall be entitled to four (4) weeks of paid time off (“ PTO ”) each full calendar year. The PTO shall be used for vacation and sick days. Any vacation shall be taken at the reasonable and mutual convenience of the Company and the Executive. Any PTO that the Executive is entitled to in any calendar year that is not used by the end of such calendar year shall be forfeited, except for up to five days of PTO each year that may be carried forward to the following year. Holidays shall be provided in accordance with Company policy, as in effect from time to time. | 93Vacations
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The execution, delivery and performance by the Borrower of the Subordinated Loan Documents to which it is a party are within the Borrower’s organizational powers and have been duly authorized by all necessary organizational action. This Agreement has been duly executed and delivered by the Borrower, and constitutes, and each other Subordinated Loan Document to which the Borrower is a party, when executed and delivered by the Borrower, will constitute, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity. | 10Authorizations
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All material consents required to effectuate the transactions contemplated by this Amendment and the other Loan Documents shall have been obtained and are in full force and effect. | 22Consents
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This Agreement shall be binding upon and inure to the benefit of Executive and his estate, and the Corporation and any successor of the Corporation, but neither this Agreement nor any rights arising hereunder may be assigned or pledged by Executive. | 84Successors
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On or prior to the date of this Agreement, the Bank shall have received, certificates of insurance, in form and detail acceptable to the Bank, describing the types and amounts of insurance (property and liability) maintained by the Borrower and its Restricted Subsidiaries. | 51Insurances
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This Joinder and the Registration Rights Agreement shall be binding upon, and shall inure to the benefit of, the New Holder and its successors and Permitted Assigns, subject to the terms and provisions of the Registration Rights Agreement. It shall not be necessary in connection with the New Holder’s status as a Holder to make reference to this Joinder. | 13Binding Effects
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This Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any party. The parties acknowledge that each of them has reviewed this Agreement and has had the opportunity to have it reviewed by their respective attorneys and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement. | 23Construction
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Each Loan Party will, and will cause each Subsidiary to, maintain with carriers that are financially sound and reputable (as determined in good faith by the Loan Parties) (a) insurance in such amounts (with no greater risk retention) and against such risks (including loss or damage by fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption; and general liability) and such other hazards, as is customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations and (b) all insurance required pursuant to the Collateral Documents. The Borrowers will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance so maintained. | 51Insurances
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Each Party represents, warrants and covenants that it will comply with the U.S. Customs & Trade Partnership Against Terrorism and with the laws and regulations relating to anti-corruption and anti-bribery including the U.S. Foreign Corrupt Practices Act (collectively, the “ Anti-Corruption Laws ”). Each Party further represents and warrants that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value to anyone as an inducement or reward for favorable action or forbearance from action or the exercise of influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license. | 3Anti-Corruption Laws
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The terms identified below in this Section 1 shall have the meanings herein specified, and capitalized terms used but not otherwise identified in this Section 1 shall have the meanings given in the Building Loan Disbursement Agreement (or in the Loan Agreement, to the extent the Building Loan Disbursement Agreement so designates) unless otherwise stated herein . | 29Definitions
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The Employer and Executive agree that the foregoing restrictions are reasonable under the circumstances and that any breach of the covenants contained in this Article VIII would cause irreparable injury to the Employer. | 79Severability
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Each Credit Party shall maintain (a) its existence and good standing in its jurisdiction of organization and (b) its qualification and good standing in all other jurisdictions in which the failure to maintain such qualification or good standing could reasonably be expected to have a Material Adverse Effect. | 40Existence
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A mortgagee/loss payee/additional insured endorsement to each Insurance Policy or certificate holder designation in favor of Lender or other proof of insurance as evidenced by a certificate of insurance, reasonably acceptable to Lender. The Lender acknowledges that the certificates of insurance delivered to it prior to or as of the Effective Date are acceptable. | 51Insurances
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This Agreement may not be assigned by Buyer without the prior written consent of Sellers. Any transfer of a majority of the direct or indirect interests in Buyer shall be deemed to be an assignment of this Agreement by Buyer. Notwithstanding the foregoing, Buyer may assign all of its rights under this Agreement as such interest relates to one or more of the Assets at or prior to the Closing to one or more (i) limited partnerships or other entities in which Buyer or Affiliates thereof are direct or indirect partners, members or shareholders, and/or (ii) one or more tenant-in-common entities so long as CWS Apartment Homes LLC is the initial property manager of the applicable Real Property after Closing, provided that (i) the Buyer originally named in this Agreement will continue to remain primarily liable under this Agreement for any pre-Closing obligations or liabilities notwithstanding any such assignment, (ii) Buyer shall deliver written notice to Sellers of any such assignment at least seven (7) Business Days prior to the Closing Date (which notice shall include the name, entity type, state of formation and signature block of the assignee), (iii) Buyer and Buyer’s assignee shall execute and deliver an assignment and assumption agreement in form reasonably satisfactory to Sellers prior to the Closing (which shall include an assumption by Buyer’s assignee of all obligations and liabilities of Buyer under this Agreement which arise from and after the date of such assignment), and (iv) Steven J. Sherwood, Gary Carmell, Michael Engels, Michael Brittingham, Justin Leahy, family members of each of such five individuals, and any trusts, partnerships or other entities, directly or indirectly, owned, controlled or for the benefit of any such five individuals or any of their respective family members (collectively, the “CWS Group”), any entity in which the managing member, manager or general partner is, directly or indirectly, owned or controlled by one or more of the CWS Group and the strategic apartment fund indirectly controlled by the CWS Group, shall, in the aggregate, invest, directly or indirectly, no less than $4,500,000 of equity in the aggregate in the Buyer(s) that acquires title to the Assets at Closing. Notwithstanding the foregoing, each Seller may assign or transfer its rights or obligations under this Agreement and title to its Real Property, without Buyer’s consent, to a Delaware limited partnership in which such Seller or its Affiliate is (directly or indirectly) a 99% (or more) limited partner and an Affiliate of such Seller is the sole general partner of such limited partnership, provided that (i) such Seller will continue to remain primarily liable under this Agreement notwithstanding any such assignment, (ii) such Seller shall deliver written notice to Buyer of any such assignment at least seven (7) Business Days prior to the Closing Date (which notice shall include the name, entity type, state of formation and signature block of the assignee), and (iii) such Seller and its assignee shall execute and deliver an assignment and assumption agreement in form reasonably satisfactory to Buyer prior to the Closing (which shall include an assumption by such Seller’s assignee of all obligations and liabilities of such Seller under this Agreement which arise from and after the date of such assignment). In no event shall the Sellers originally named in this Agreement be released from any liability or obligation under this Agreement as a result of any such assignment or transfer. | 7Assignments
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Except as otherwise set forth in this Agreement to the contrary, all claims against, and liabilities of, Tenant or Landlord arising prior to any date of termination or expiration of this Agreement with respect to the Leased Property shall survive such termination or expiration. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated except by an instrument in writing signed by all the parties thereto. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Each term or provision of this Agreement to be performed by Tenant shall be construed as an independent covenant and condition. Time is of the essence with respect to the exercise of any rights of Tenant or Landlord under this Agreement. Except as otherwise set forth in this Agreement, any obligations (including without limitation, any monetary, repair and indemnification obligations) arising prior to the expiration or earlier termination of this Agreement of Tenant and Landlord shall survive the expiration or earlier termination of this Agreement. Nothing contained in this Agreement shall be construed to create or impose any liabilities or obligations and no such liabilities or obligations shall be imposed on any of the shareholders, beneficial owners, direct or indirect, officers, directors, trustees, employees or agents of Landlord or Tenant for the payment or performance of the obligations or liabilities of Landlord or Tenant hereunder. Further, in the event Landlord shall be in Default under this Agreement, and if as a consequence of such Default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment against the right, title and interest of Landlord in the Leased Property. | 23Construction
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On one or more Closing Dates, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $600,000 of Units; provided, however, upon the written consent of the Company, such amount may be increased. Each Purchaser shall deliver to the Company, via wire transfer or a certified check drawn on a United States bank, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective shares of Series A-1 Preferred Stock and Series A-1 Warrants, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, each Closing shall occur at the offices of Company Counsel at 1750 Tysons Boulevard, Suite 1000, McLean, Virginia 22102 or such other location as the parties shall mutually agree. There shall be no minimum investment amount necessary to effect a Closing. | 18Closings
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The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities and other shares of Common Stock as contemplated in this Agreement and the Memorandum. If during the Offering period, any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Memorandum, the Company will promptly prepare an appropriate amendment or supplement to the Memorandum, that is necessary in order to make the statements therein as so amended or supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Memorandum, as so amended or supplemented, will comply with law. Before amending the Memorandum, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not distribute any such amendment or supplement to which the Placement Agent reasonably objects. | 2Amendments
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This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same agreement. A signed copy of this Agreement transmitted by a party to another party via facsimile or an emailed “pdf” version shall be binding on the signatory thereto. Notwithstanding the delivery of the faxed or emailed copy, Borrower agrees to deliver to Lender original executed copies of this Agreement. | 26Counterparts
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After giving effect to the consummation of the Transactions, on the Effective Date, the Borrower, together with its Restricted Subsidiaries on a consolidated basis, is Solvent. | 80Solvency
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Notwithstanding any other provision of the Plan to the contrary, the Committee or Board may determine, in their discretion, that upon the occurrence of a transaction involving the consummation of a reorganization, merger, consolidation or similar transaction involving the Company (other than a reorganization, merger, consolidation or similar transaction in which the Company’s shareholders immediately prior to such transaction own more than 50% of the combined voting power entitled to vote in the election of directors of the surviving corporation), a sale of all or substantially all of its assets, the liquidation or dissolution of the Company, the acquisition of a significant percentage, which shall be no less than beneficial ownership (within the meaning of Rule 13d-3 under the Act) of 20%, of the voting power of the Company, (each a “Change in Control Event”), which shall not include preliminary transaction activities such as receipt of a letter of interest, receipt of a letter of intent or an agreement in principle, and, within three months immediately prior to or two years following the Change in Control Event, a Participant’s employment or service relationship with the Company, a Subsidiary or an Affiliated Company is terminated (a “Termination Event”) that (i) Stock Options and Stock Appreciation Rights may become immediately exercisable; (ii) restrictions and deferral limitations applicable to any Restricted Stock or Restricted Stock Unit Award may become free of all restrictions and limitations and become fully vested and transferable; (iii) all Performance Awards may be considered to be prorated, and any deferral or other restriction may lapse and such Performance Awards may be immediately settled or distributed; (iv) the restrictions and deferral limitations and other conditions applicable to any Other Stock Unit Awards or any other Awards granted under the Plan may lapse and such Other Stock Unit Awards or such other Awards may become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the Award not previously forfeited or vested. Notwithstanding the foregoing, with respect to any Award issued prior to May 1, 2015 or any Performance Award or Performance Award converted to a Restricted Stock Unit Award issued on or after May 1, 2015 to a Participant, a Termination Event shall not be required in order for (i) – (iv) of this Section to occur. Notwithstanding the definition of Change in Control Event above in this Section 11, to the extent required to avoid the adverse tax consequences under Section 409A of the Code, a Change in Control Event shall be deemed to occur only to the extent it also meets the requirements for a change in control event for purposes of Section 409A of the Code. | 17Change In Control
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The representations and warranties of each Loan Party contained in the Credit Agreement as amended or otherwise modified hereby and each Loan Document are (i) in the case of representations and warranties qualified by materiality, “Material Adverse Effect” or similar language, true and correct in all respects and (ii) in the case of all other representations and warranties, true and correct in all material respects, in each case on and as of the Amendment Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties are true and correct on the basis set forth above as of such earlier date. | 76Representations
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So long as participation of the same percentage of Group Commitment and/or Group Loans is entered into concurrently therewith, 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 a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person), a Defaulting Lender or a Disqualified Lender); provided that, notwithstanding anything to the contrary contained herein, participations may be sold to Disqualified Lenders unless the DQ List has been posted to the Platform (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 Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line 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, (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (iv) no Lender shall sell a participation if such sale would cause any Loan Party or the Participant to be in violation of any material Communications Law. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation. This Section 10.06(d) shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code. All parties hereto acknowledge and agree that the Administrative Agent shall have no obligation or duty to monitor or track whether any Disqualified Lender shall have become a Participant hereunder. | 67Participations
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Notwithstanding the provisions of Section 3(a) , in the event of a Change in Control, if the Awards are not assumed or replaced with awards of substantially equal value by the acquiring entity in such a Change in Control and/or cease to remain outstanding immediately following the Change in Control, all of the Retention Stock Units subject to a Participant’s Award will become fully vested as of the date immediately following such Change in Control, provided the Participant has remained continuously employed by the Company or a Related Company through such date. After a Change in Control, references to the “Company” as they relate to the Award shall refer to the successor entity. | 17Change In Control
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This Agreement, and any related agreement referred to herein, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. This Agreement supersedes and replaces all prior understandings and agreements between the parties hereto, whether written or oral, express or implied, with respect to the subject matter hereof. | 38Entire Agreements
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This License Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral. There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter hereof except as herein provided. | 38Entire Agreements
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The Board of Directors, acting through the Committee, may amend, suspend or terminate the Plan, any portion thereof at any time, consistent with applicable law, regulation and listing rules, but it may not adversely affect the rights of any participant with respect to an award already earned. Notwithstanding the foregoing, any material amendments (as defined under the NASDAQ Listing Rules) of the EIP Plan will require shareholder approval. | 2Amendments
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Subject to this Section 3.3 and the applicable terms of this Agreement, (i) Athenex shall Develop Licensed Products in the Field in the Territory in accordance with the Development Plan, as it may be revised from time to time in accordance with Section 3.3(b)(i), and (ii) Almirall shall use Commercially Reasonable Efforts to obtain Regulatory Approval of the Current Product in at least one of the Major European Markets. Without prejudice to the studies and activities included in the Development Plan, Athenex shall conduct all development studies to the extent required or necessary for Regulatory Approval for the Current Product in the U.S. | 46General
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The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Arranger, each Bookrunner, each Swing Line Lender, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Company or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01 ), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or emanating from any property owned, leased or operated by the any Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or any of such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee (or any Affiliate Controlled by or under common Control with such Indemnitee). | 49Indemnifications
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The headings of this Waiver are for convenience of reference and shall not form part of, or affect the interpretation of, this Waiver. | 48Headings
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The Company confirms that neither it nor any Person acting on its behalf has provided any Investor or its respective agents or counsel with any information that the Company believes constitutes material, non-public information concerning the Company, the Subsidiaries or their respective businesses, except insofar as the existence and terms of the proposed transactions contemplated hereunder may constitute such information. The Company understands and confirms that the Investors will rely on the foregoing representations and covenants in effecting transactions in securities of the Company. Except as specified below, all disclosure provided to the Investors regarding the Company, the Subsidiaries or their respective businesses and the transactions contemplated hereby, furnished by or on behalf of the Company (including the Company’s representations and warranties set forth in this Agreement) are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. | 31Disclosures
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This Agreement and each of the other Credit Documents, taken together, constitute and contain the entire agreement of the Borrower, the Lenders and the Administrative Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof (including, except to the extent expressly set forth therein, the commitment letter dated as of October 23, 2014 among Holdings, the Borrower, Wells Fargo and WFS), excluding the Fee Letters. | 38Entire Agreements
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There is no proceeding pending or, to the Knowledge of Seller, threatened or anticipated, against Seller relating to or affecting this Agreement or the Transactions. | 58Litigations
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(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes . (i) Any and all payments by or on account of any obligation of the Borrowers hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require an applicable withholding agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by Newpark or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below. | 87Taxes
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EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.10. | 96Waiver Of Jury Trials
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The Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, the Performance Cash (including performance criteria and conditions relating thereto) in recognition of unusual or nonrecurring events (including, without limitation, acquisitions and dispositions of businesses and assets) affecting the Company, any Subsidiary or any business unit, or the financial statements of the Company or any Subsidiary, or in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or in view of the Committee’s assessment of the business strategy of the Company, any Subsidiary or business unit thereof, performance of comparable organizations, economic and business conditions, and any other circumstances deemed relevant, provided that no such adjustment shall be authorized or made if and to the extent that such authority or the making of such adjustment would cause the Performance Cash intended to qualify as “performance-based compensation” under Code Section 162(m) and the regulations thereunder to otherwise fail to qualify as “performance-based compensation” under Code Section 162(m) and regulations thereunder. | 0Adjustments
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Upon the occurrence of an Event of Default, Landlord may exercise all rights and remedies under this Lease and the laws of the state where the Premises is located that are available to a Landlord of real and personal property in the event of a default by its Tenant, and as to the Tenant Property, all remedies granted under the laws of such state(s) to a secured party under its Uniform Commercial Code. Landlord shall have no duty to mitigate damages unless required by applicable law and shall not be responsible or liable for any failure to relet the Premises or to collect any rent due upon any such reletting. Tenant shall pay Landlord, promptly upon demand, all expenses incurred by it in obtaining possession and reletting any of the Premises, including fees, commissions and costs of attorneys, architects, agents and brokers. | 75Remedies
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Borrower hereby represents to Lender that, except for Eastdil Secured LLC (“ Broker ”), it has not dealt with any financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower shall indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, losses, costs and expenses of any kind (including Lender’s attorneys’ fees and expenses) in any way relating to or arising out of a claim by any Person (including Broker) that such Person acted on behalf of Borrower in connection with the transactions contemplated in this Agreement. The provisions of this Section 9.14 shall survive the expiration and termination of this Agreement and the repayment of the Indebtedness. | 15Brokers
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When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.” The headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. | 55Interpretations
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Except as disclosed to the Administrative Agent by the Borrower in writing from time to time after the Closing Date, (a) Schedule 3.14 sets forth the name and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Equity Interests owned by any other Group Member and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options or long-term incentive plan and other employee benefits in the nature thereof granted to employees or directors and directors’ qualifying shares) of any nature relating to any Equity Interests of the Borrower or any Subsidiary. | 83Subsidiaries
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There is no pending, or to the Pride Shareholders’ Knowledge, threatened in writing action, claim, suit, proceeding or investigation against Pride, or to which any property, assets or rights of Pride is subject, nor is Pride subject to any Order that remains outstanding or unsatisfied, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Pride Material Adverse Effect. | 58Litigations
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This Amendment shall be governed by, and construed and interpreted in accordance with, the law of the State of Wisconsin. | 47Governing Laws
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This Agreement shall terminate in its entirety upon the earliest to occur of (i) the termination of the Merger Agreement in accordance with its terms; (ii) the Effective Time (the “ Expiration Date ”); and (iii) an amendment, waiver or modification to the Merger Agreement or the agreements ancillary thereto that modifies any term in a manner that is materially adverse to the Stockholder, including the Exchange Ratio. The provisions of this Article II ( Miscellaneous ) shall survive any termination of this Agreement. In the event of termination of this Agreement, this Agreement shall, subject to the immediately preceding sentence, become void and of no effect with no liability on the part of any party hereto; provided , however , that the termination of this Agreement shall not prevent any party hereto from seeking any remedies (at law or in equity) against any other party hereto for such party’s breach of any of the terms of this Agreement occurring prior to such termination. | 88Terminations
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The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) routine renewals of existing licenses and permits of the US Borrower and its Subsidiaries in the ordinary course of business and (iii) such filings as may be required under federal and state securities laws for purposes of disclosure, (b) will not violate any applicable law or regulation (including, without limitation, all laws, rules and regulations promulgated by or relating to IMSS, INFONAVIT and SAR) or the charter, by-laws or other organizational documents of any Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Borrower or any of its Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of any Borrower or any of its Subsidiaries other than the Liens created by the Security Documents. | 61No Conflicts
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This Agreement, together with the Confidentiality Agreement, the CIC Severance Agreement (except as amended by this Agreement), the Bonus Plan (except as amended by this Agreement) and the Equity Agreements (except as amended by this Agreement), represents the entire agreement and understanding between the Company and Employee concerning the subject matter of this Agreement and Employee's employment with and separation from the Company and the events leading thereto and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement and Employee's relationship with the Company. | 38Entire Agreements
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This Agreement, together with the Purchase Agreement and the Escrow Agreement, sets forth the entire agreement and understanding of the Parties hereto with respect to the subject matter contained herein, and supersedes and cancels all prior or contemporaneous agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, with respect to the subject matter hereof. | 38Entire Agreements
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This Agreement may be terminated by the Purchaser, as to the Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the Purchaser, by written notice to the other parties, if the First Closing has not been consummated on or before _____________ ___, 2017; provided , however , that such termination will not affect the right of any party to sue for any breach by the other party (or parties). The Company’s representations and warranties shall survive the termination of this Agreement. | 88Terminations
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As used in this Agreement, capitalized terms shall have the respective meanings set forth on Exhibit A. Any term used in the Code and not defined herein shall have the meaning given to such term in the Code. | 29Definitions
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Except as specifically provided in this Agreement and subject to certain restrictions and conditions set forth in the Plan, 100% of the total Optioned Shares shall vest and become exercisable as of March 30, 2017. | 95Vesting
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Each of the Parties shall bear its own costs and expenses in connection with this Agreement and the transactions contemplated hereby, including all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties, whether or not the Acquisition is consummated. | 41Expenses
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This agreement will be governed by and construed under Illinois Law, without regard to conflict of laws principles. | 47Governing Laws
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