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Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall sell, assign, transfer and convey to the Buyers, and the Buyers shall purchase and acquire from the Sellers, all of the Interests, free and clear of all Liens. | 77Sales
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As of the Closing Date, Schedule 5.22(a) sets forth a true, complete and accurate description of the equity capital structure of each direct and indirect Subsidiary of the Borrower (other than Inactive Subsidiaries and Immaterial Subsidiaries) showing, for each such Person, accurate ownership percentages of the equityholders of record and accompanied by a statement of authorized and issued Equity Interests for each such Person. Except as set forth on Schedule 5.22(a) , as of the Closing Date (a) there are no preemptive rights, outstanding subscriptions, warrants or options to purchase any Equity Interests of any Credit Party, (b) there are no obligations of any Credit Party to redeem or repurchase any of its Equity Interests and (c) there is no agreement, arrangement or plan to which any Credit Party is a party or of which any Credit Party has knowledge that could directly or indirectly affect the capital structure of any Credit Party. The Equity Interests of each Credit Party described on Schedule 5.22(a) (i) are validly issued and fully paid and non‑assessable (to the extent such concepts are applicable to the respective Equity Interests) and (ii) are owned of record and beneficially as set forth on Schedule 5.22(a) , free and clear of all Liens (other than Liens created under the Security Documents). As of the Closing Date, Schedule 5.22(b) sets forth each direct or indirect Subsidiary of the Borrower which is an Inactive Subsidiary or an Immaterial Subsidiary. All Domestic Subsidiaries (other than Excluded Domestic Subsidiaries) are party to the Guaranty. | 16Capitalization
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During the term of this Agreement, Executive shall be entitled to vacation days in accordance with policies as established from time to time by the Corporation Board and/or the Bank Board. Executive shall also be entitled to all paid holidays, sick days and personal days provided by the Bank to its regular full-time employees and senior executive officers. | 93Vacations
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All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “ Notice ”) shall be in writing and addressed to the parties at the addresses set forth above (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Section. | 65Notices
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Sellers acknowledge s and agree s that Buyer would be damaged irreparably in the event any provision of this Agreement is not performed in accordance with its specific terms or otherwise is breached, so that Buyer shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in addition to any other remedy to which Buyer may be entitled, at law or in equity. In particular, Sellers acknowledge that the Business of the Companies is unique and recognize and affirm that in the event Sellers Breach this Agreement, money damages would be inadequate and Buyer would have no adequate remedy at law, so that Buyer shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and obligations hereunder not only by action for damages but also by action for specific performance, injunctive, and/or other equitable relief. | 81Specific Performance
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All matters relating to the interpretation, construction, application, validity, and enforcement of this Agreement will be governed by the laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule, whether of the State of Minnesota or any other jurisdiction, that would cause the application of laws of any jurisdiction other than the State of Minnesota. | 47Governing Laws
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Landlord and Tenant each represents and warrants to the other that such representing party has had no dealings, negotiations, or consultations with respect to the Premises or this transaction with any broker or finder other than a Landlord affiliate and Skyline Commercial Real Estate (“ Broker ”). Each party must indemnify, defend, and hold harmless the other from and against any and all liability, cost, and expense (including reasonable attorneys’ fees and court costs), arising from any misrepresentation or breach of warranty under this Section. Landlord must pay Broker a commission in connection with this Amendment pursuant to the terms of a separate written agreement between Landlord and Broker. This Section will survive the expiration or earlier termination of the Term. | 15Brokers
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This Agreement shall be governed by, and construed in accordance with, the law of the State of New York. The Payees hereby submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York City, borough of Manhattan for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. This Agreement may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original and all of which, taken together, shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission shall be as effective as delivery of an original executed counterpart of this Agreement. This Section 2 shall survive the termination of this Agreement. EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. | 46General
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This Amendment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment may be executed via facsimile, which shall be deemed an original. | 26Counterparts
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This Agreement is personal to Executive and shall not be assignable by Executive without the prior written consent of the Company. This Agreement and any rights and benefits hereunder shall inure to the benefit of and be enforceable by Executive’s legal representatives, heirs or legatees. This Agreement and any rights and benefits hereunder shall inure to the benefit of and be binding upon the Company and its successors and assigns, including any corporation with which or into which the Company may be merged or which may succeed to its assets or business. | 84Successors
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THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES. | 47Governing Laws
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Unless otherwise consented to in writing by the Lenders, the Company shall use FIFTEEN MILLION U.S. DOLLARS (US$15,000,000) of the Loan Amount to pay the Initial Civil Penalty provided for in the Consent Decree, dated January 11, 2017, entered into by the Company and Federal Communications Commission (the “Consent Decree”) in accordance with the payment requirements set forth in the Consent Decree, and the remainder of the Loan Amount for general corporate purposes and working capital needs, including payment of the Expense Amount. | 92Use Of Proceeds
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As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) a registration statement registering such securities under the Securities Act has been declared effective and such securities have been sold or otherwise transferred by the holder thereof pursuant to such effective registration statement, (ii) such securities shall have been distributed pursuant to Rule 144 under the Securities Act, (iii) such securities shall have been otherwise transferred in a transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of such securities, (iv) such securities are no longer outstanding or (v) such securities may be sold without restriction under the Securities Act. This Agreement shall terminate and be of no further force or effect when there shall no longer be any Registrable Securities outstanding; provided , that the provisions of Section 6 and Section 7 shall survive any such termination. | 88Terminations
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This Agreement shall not be altered, amended or modified except by written instrument executed by the Company and the Executive. | 2Amendments
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This Guaranty shall be governed by and construed in accordance with the laws of the United States of America and the State of Texas, and is intended to be performed in accordance with and as permitted by such laws. This Guaranty cannot be changed or terminated orally. | 4Applicable Laws
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This Restricted Stock Agreement shall be construe d and interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Notwithstanding anything contained in this Restricted Stock Agreement, the Grant Notice or the Plan to the contrary, if a ny suit or claim is instituted by the Participant or the Company relating to this Restricted Stock Agreement, the Grant Notice or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the courts of Delaware. | 47Governing Laws
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The representations and warranties contained herein shall survive the Closing and the delivery of the S ecurities . | 85Survival
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In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. | 79Severability
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On the Restatement Effective Date, before and after giving effect to each Loan or Letter of Credit on the Restatement Effective Date and the other transactions to occur on the Restatement Effective Date, the Loan Parties, on a consolidated basis, are Solvent. No transfer of property has been or will be made by any Loan Party and no obligation has been or will be incurred by any Loan Party 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 any Loan Party. | 80Solvency
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During the Transition Period, your base salary will remain the same, and you will continue to be eligible for the Company’s standard benefits, subject to the terms and conditions applicable to such plans and programs. Your Company stock options will continue to vest under the existing terms and conditions set forth in the governing plan documents and option agreement. | 12Benefits
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Notices required or permitted hereunder shall be in writing and shall be delivered personally or by mail, postage prepaid, addressed to Raytheon Company, 870 Winter Street, Waltham, Massachusetts 02451, Attention: Vice President, Human Resources and Global Security, and, if to you, to your address as shown on the Company's payroll records. | 65Notices
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(a) Each Company owns or is licensed to use, free and clear of all Liens (other than Permitted Liens), all patents and patent applications, trademarks, trade names, service marks, copyrights, domain names and applications for registration thereof, and technology, trade secrets, proprietary information, inventions, know-how and processes, in each case necessary for the conduct of its business as currently conducted and proposed to be conducted (the “ Intellectual Property ”), except for those the failure to own or license which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. | 53Intellectual Property
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This letter agreement may be executed in one or more counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument. This letter agreement may be executed by facsimile or other electronic transmission, including by “.pdf” and other similar format. This letter agreement and all acts and transactions hereunder and all rights and obligations of Wells Fargo and Company shall be governed by the laws of the State of New York. | 59Miscellaneous
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This Agreement (together with the Offering Memorandum, the Consent Solicitation Statement, the Commitment Letter, any Definitive Documents, that certain Termination Payment Letter, dated as of the date hereof, among GSO and the Companies (the “ Termination Payment Letter ”) describing the Termination Payment (as defined therein), and any existing confidentiality agreements among the Parties relating to the Transactions) constitutes the entire understanding and agreement among the Parties with regard to the subject matter hereof and supersedes all prior agreements with respect thereto. | 38Entire Agreements
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The Company agrees to use the net proceeds from the sale and issuance of the Notes pursuant to this Agreement for working capital and general corporate purposes. | 92Use Of Proceeds
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Any fees of the Arrangers, the Administrative Agent and the Lenders required to be paid on or before the Closing Date shall have been paid to the extent the Borrower has received an invoice therefor at least two Business Days prior to the Closing Date (it being understood that at the Borrower’s election, payment of such fees to the Administrative Agent on behalf of the Administrative Agent, the Arrangers and the Lenders may constitute payment under this Section 5.01(f)) ). | 42Fees
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The Annual Base Salary shall be paid at such intervals as the Company pays executive salaries generally. | 11Base Salary
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There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues ( i ) as of the Closing Date, that pertain to this Agreement, any other Loan Document or the consummation of the Transactions or ( ii ) that would reasonably be expected to have a Material Adverse Effect. | 58Litigations
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The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuers and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. | 85Survival
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To the extent not prohibited by applicable Laws or Permits, each Debtor agrees that any provision of any Constituent Document of any issuer of Collateral, any applicable Law, any certificate or instrument evidencing Collateral, or any other governance document that in any manner restricts, prohibits or provides conditions to (a) the grant of a Lien on any Equity Interest of such issuer or any other Collateral, (b) any transfer of any Equity Interest of such issuer or any other Collateral, (c) any change in management or control of such issuer or any other Collateral, (d) the admission of any transferee of any Collateral as a shareholder, member, partner or other equity holder of the issuer of such Collateral, or (e) any other exercise by Administrative Agent or any other Secured Party of any rights pursuant to this Agreement, any other Loan Document or Law, in each case shall not apply to (i) the grant of any Lien hereunder, (ii) the execution, delivery and performance of this Agreement by such Debtor, (iii) the foreclosure or other realization upon any interest in any Collateral, or (iv) the exercise of rights with respect to such Collateral, including the right to participate in the management of such issuer. Furthermore, to the extent not prohibited by applicable Laws or Permits, no Debtor will permit any amendment to or restatement of any Constituent Document or any other governance document or enter into or permit to exist any agreement that in any manner adversely affects Administrative Agent's ability to foreclose on any Collateral or which conflicts with the provisions of this Section 4.09 . | 97Waivers
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This Agreement and the engagement of the Consultant by the Company hereunder shall automatically terminate effective on the close of business on March 30, 2018, without the requirement of any further action by any party. If the Consultant and the Company mutually agree to extend this Agreement, it may be extended through June 29, 2018 by mutual written agreement entered into prior to the expiration of this Agreement. During the Term of the Agreement, or extension thereof, either party shall have the right to terminate at any time for any reason or no reason at all with thirty (30) days’ prior written notice, by electronic communication or certified mail. | 88Terminations
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The language of this Agreement is the result of arms ’ length negotiations between the parties. The wording of this Agreement shall be given its plain meaning with no presumptions in favor of one party or the other. Titles and headings shall not be construed to alter or control the substance of any provision. | 23Construction
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The Parties agree and promise that they will not undertake any harassing or disparaging conduct directed at the other Party, and that they will refrain from making any negative, detracting, derogatory, and unfavorable statements about the other Party. Employee further agrees and promises that Employee will not induce or incite claims of discrimination, wrongful discharge, or any other claims against Employer by any other person. The Parties hereby agree and acknowledge, however, that the terms of this Paragraph 9 would not and do not prevent them from providing truthful information in response to a legal subpoena and/or other legal process. | 64Non-Disparagement
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Assignors covenant with Assignee and Assignee covenants with Assignor that each will execute or procure any additional documents necessary to establish the rights of the other hereunder. | 45Further Assurances
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Notwithstanding Section 3.4 , the Managing Members and officers shall not be liable, responsible or accountable for damages or otherwise to the Company, or to the Members, and, to the fullest extent allowed by law, each Managing Member and each officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses from and against all claims, liabilities, and expenses arising out of any management of Company affairs; provided that (A) such Managing Member’s or officer’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and was reasonably believed by him to be within the scope of authority conferred on such Managing Member or officer pursuant to this Agreement and (B) such course of conduct did not constitute gross negligence, willful misconduct or fraud on the part of such Managing Member or officer and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section 3.5 are intended to provide indemnification of the Managing Members and the officers to the fullest extent permitted by the GCL regarding a company’s indemnification of its Managing Members and officers and will be in addition to any rights to which the Managing Members or officers may otherwise be entitled by contract or as a matter of law and shall extend to his heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section 3.5 . Each Managing Member’s and each officer’s right to indemnification pursuant to this Section 3.5 may be conditioned upon the delivery by such Managing Members or such officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section 3.5 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. | 49Indemnifications
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All proceeds received by the Company pursuant to Awards granted under the Plan shall be used for general corporate purposes. | 92Use Of Proceeds
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All headings in this License Agreement are for convenience only and will not affect the meaning of any provision hereof. | 48Headings
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All representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless of (a) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (b) delivery and acceptance of the Placement Shares and payment therefore, or (c) any termination of this Agreement. | 76Representations
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Each of the Loan Parties and the Restricted Subsidiaries is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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The Parent will not, and will not permit any other Credit Party to, enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property or the rendering of any service, with any Affiliate (other than transactions among or between Credit Parties) unless such transactions are otherwise permitted under this Agreement and are upon fair and reasonable terms no less favorable to it than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate; provided , that the foregoing restrictions shall not apply to (a) employment and severance arrangements and health, disability and similar insurance or benefit plans between the Parent (or any direct or indirect parent thereof) and its Subsidiaries and their respective directors, officers, employees or consultants (including management and employee benefit plans or agreements, subscription agreements or similar agreements pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with current or former employees, officers, directors or consultants and equity option or incentive plans and other compensation arrangements) in the ordinary course of business or as otherwise approved by the Board of Directors of the Parent; (b) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of the Parent and its Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of, or in connection with any services provided to or by, the Parent and the other Credit Parties, (c) transactions pursuant to agreements in existence on the Effective Date and set forth on Schedule 9.13 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (d) any Debt otherwise permitted by Section 9.02 , Investments otherwise permitted by Section 9.05 , Restricted Payments, redemptions, repurchases and other actions permitted under Section 9.04 , (e) any issuance of Equity Interests or other payments, awards or grants in cash, securities, Equity Interests or otherwise pursuant to, or the funding of, employment arrangements, equity options and equity ownership plans approved by the Board of Directors of the Parent, and (f) payments by or to the Parent and the other Credit Parties pursuant to Tax payment arrangements among the Parent and its Subsidiaries on customary terms; provided , that payments by Parent and the other Credit Parties under any such Tax payment arrangements shall not exceed the excess (if any) of the amount they would have paid on a standalone basis over the amount they actually pay directly to Governmental Authorities. | 91Transactions With Affiliates
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This Agreement may be amended from time to time by written agreement signed by each of Seller, Buyer and Custodian. | 2Amendments
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The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. | 23Construction
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The Investor is duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation as the form of business entity set forth on Schedule 1 ; has all requisite power and authority to enter into the Transaction Documents to which it is a party and to performance its obligations thereunder. The Investor’s principal place of business is at the address or addresses of the Investor set forth on Schedule 1 . | 66Organizations
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Each of the Company and the Guarantors has the requisite corporate or other power and authority to enter into, execute and deliver this Agreement, the other Transactions Documents and, assuming receipt of the Requisite Shareholder Approvals, to perform its respective obligations and consummate the Transactions, including the issuance of the Offered Securities (including any PIK Notes), the Warrant Shares and any PIK Shares. Each of the Company and the Guarantors has taken all necessary corporate action required for the due authorization of the Transaction Documents, as applicable, the performance of its obligations thereunder and the consummation of the Transactions. | 9Authority
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Evidence reasonably satisfactory to the Administrative Agent that there are no outstanding material taxes, levies, duties, imposts, deductions, charges (including water and sewer charges), withholdings, assessments or impositions of any kind which have been due and payable for more than thirty (30) days with respect to such Mortgaged Property, except to the extent that any such matters are being contested in accordance with the terms of Section 6.2 . | 87Taxes
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All quarterly and annual financial statements of Borrower and its consolidated subsidiaries heretofore delivered by Borrower to Administrative Agent did not fail to disclose any material liabilities, whether direct or contingent, and fairly presented in all material respects the financial condition of Borrower and its consolidated subsidiaries, as the case may be, in each case as of the date delivered and were prepared in accordance with GAAP. Since December 31, 2016, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect. | 43Financial Statements
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No amendment or waiver of any provision of this Agreement or consent to any departure by any Lessee therefrom shall in any event be effective unless the same shall be in writing and signed by the Buyer and the Lessee Representative and, if such amendment or waiver affects the obligations of Guarantor or any of its Affiliates (other than the Lessees), Guarantor consents in writing thereto, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. | 2Amendments
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A detailed summary of the Borrowers’ use of the proceeds being funded hereunder. | 92Use Of Proceeds
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This Agreement may be terminated by either party by written notice to the other party if the Closing has not been consummated on or before March 31, 2017. | 88Terminations
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This Agreement and the Award of Restricted Stock Units granted hereunder shall be governed by, and construed in accordance with, the laws of the State of California , U.S.A., without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Award of Restricted Stock Units or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of California , U.S.A., and agree that such litigation shall be conducted only in the courts of Santa Clara County , California , U.S.A., or the federal courts for the United States for the Northern District of California , U.S.A., and no other courts, where this Award of Restricted Stock Units is made and/or to be performed. | 47Governing Laws
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This Agreement and all references herein contains the entire agreement and understanding of the Parties in respect to the subject matter contained herein. The Parties have expressly not relied upon any promises, representations, warranties, agreements, covenants, or undertakings, other than those expressly set forth or referred to herein. This Agreement supersedes any and all prior written or oral agreements, understandings, and negotiations between the Parties with respect to the subject matter contained herein. | 38Entire Agreements
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Except for those sections that specifically reference a federal statute or regulation, this Amendment shall be deemed to be a contract made under, and for all purposes shall be construed in accordance with, the laws of the State of Tennessee. The foregoing notwithstanding, to the extent the following defenses would be available to the Borrower under federal law, then such defenses shall be available to the Borrower in connection with this Amendment: (i) non-liability for punitive damages, (ii) exemption from anti-trust laws, (iii) the Borrower cannot be contractually bound by representation of an employee made without actual authority, (iv) presumption that government officials have acted in good faith and (v) limitation on the application of the doctrine of equitable estoppel to the government. For the avoidance of doubt, the Credit Agreement, as amended by this Amendment, shall continue to be governed by Section 10.15 Governing Law; Jurisdiction; Etc . and not by Section 8, Governing Law , of this Amendment. | 47Governing Laws
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Identified on Schedule 5.5 is a complete and accurate list of all Intellectual Property Rights used by Seller in the Business. Except as set forth on Schedule 5.5, the Transferred Intellectual Property is owned free and clear of all Encumbrances or has been duly licensed for use by Seller and all pertinent licenses and their respective material terms are set forth on Schedule 5.5. Except as set forth on Schedule 5.5, the Transferred Intellectual Property is not the subject of any pending adverse claim or, to Seller’s knowledge, the subject of any threatened litigation or claim of infringement or misappropriation. Except as set forth on Schedule 5.5, the Seller has not violated the terms of any license pursuant to which any part of the Transferred Intellectual Property has been licensed by the Seller. To Seller’s knowledge, except as set forth on Schedule 5.5, the Transferred Intellectual Property does not infringe on any Intellectual Property Rights of any third party. To the Seller’s knowledge the Transferred Intellectual Property together with the rights granted under the Trademark License Agreement constitutes all of the Intellectual Property Rights necessary to conduct the Business as presently conducted. Except as set forth on Schedule 5.5, the Transferred Intellectual Property will continue to be available for use by Buyer from and after the Closing at no additional cost to Buyer. | 53Intellectual Property
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This Agreement supersedes any and all other previous agreements, either oral or in writing, between the parties hereto with respect to the employment of Employee by the Company and contains all of the covenants and agreements between the parties with respect to such employment in any manner whatsoever. This Agreement does not however modify the terms of existing agreements entered into with Employee regarding shares of stock or other equity in the Company, such as the Sale Restriction Agreement dated as of November 4, 2013 (the “ SRA ”) and the Restricted Stock Purchase Agreement, Buy-Sell Agreement and SAR Conversion Agreement, all as defined in the SRA, and any Deferred Stock Unit Award Agreement or Restricted Stock Unit Award Agreement (collectively referred to as the “ Equity Agreements ”). In the event of a conflict between this Agreement and any of the Equity Agreements, the terms of the Equity Agreements shall govern. Any modification of this Agreement will be effective only it if is in writing signed by the party to be charged. | 38Entire Agreements
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The Company has one Subsidiary as of the date hereof, Q2Power Corp., as set forth in the Company’s filings with the Securities and Exchange Commission (the “ SEC Documents ”). The Company owns 100% of the Subsidiary and such ownership interest is, other than set out in Schedule 2(a) , free and clear of any liens, and all of the issued and outstanding shares of capital stock of the Subsidiary are validly issued, fully paid and non-assessable and free of preemptive and similar rights to purchase securities. Neither the Company nor the Subsidiary are subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of the capital stock of the Subsidiary or any convertible securities, rights, warrants or options of the type described in the preceding sentence, except as set forth in Schedule 2(a) . Neither the Company nor any Subsidiary is party to, nor has any knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of any Subsidiary. | 83Subsidiaries
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If, during the DER Vested Period for any DERs, the record date for any dividends payable in respect of the Shares occurs, then promptly following the payment of such dividends to holders of such Shares, the Company shall pay a bonus to the Participant in an amount equal to (x) the per-share dividend so paid to such holders, multiplied by (y) the number of DERs held by the Participant on such record date. | 68Payments
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The Company agrees to employ Executive and Executive hereby accepts such employment, in accor dance with the terms of this Agreement. Subject to Section 5, the term of Executive’s employment shall cornmence as of September 5, 2017 and continue for three (3) years thereafter unless this Agreement is earlier terminated as provided herein (the “ Term ”); provided , however, that unless the Company gives written notice to Executive at least thirty (30) days prior to the end of the Term of this Agreement (as the Term may be extended pursuant to this Section I ), on each anniversary of the date hereof, the Term of this Agreement shall automatically be extended for an additional one (1) year period. | 89Terms
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The Corporation shall pay the Executive, in cash, in a lump sum, no later than the Payment Date, an amount equal to all accrued but unused vacation determined as of the Date of Termination. The amount of such payment shall be determined based upon the Executive’s Severance Salary Rate. In no event shall the amount of vacation time to which the Executive is entitled be less than the amount to which he would have been entitled under the vacation policy in effect as of the Change in Control. | 93Vacations
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Enter into any transaction of any kind with any Affiliate of any Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Borrower or such Subsidiary as would be obtainable by such Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to transactions solely between or among the Loan Parties. | 91Transactions With Affiliates
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Weatherford US is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted. Weatherford CA is a corporation duly organized, validly existing and in good standing under the laws of the Province of Alberta, and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted. The Weatherford Entities are duly qualified or authorized to do business as a foreign corporation and are in good standing under the laws of each jurisdiction in which it owns or leases real property in connection with the Weatherford Business and each other jurisdiction in which the conduct of the Weatherford Business or the ownership of their respective properties related to the Weatherford Business requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not have a Material Adverse Effect. | 66Organizations
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The representations and warranties contained in Sections 3.1(a), 3.1(b), (c), (n) and (o) shall survive indefinitely, and the other representations and warranties contained herein shall survive the Closing and the delivery of the Securities for a period of twelve (12) months following the Closing Date. The covenants in Article IV shall survive the Closing until their performance or expiration pursuant to their terms regardless of acceptance of any of the Securities and payment therefor. | 85Survival
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The Borrower agrees to pay all reasonable costs and expenses of the Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable and documented fees and expenses of the Agent’s legal counsel. | 41Expenses
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The parties agree that the traditional rule that often applies whereby an ambiguity in a contract is construed against the drafter shall not apply to this Agreement. | 23Construction
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Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Warrant will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Warrant, that the holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Warrant and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any bond or other security being required. | 75Remedies
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This Agreement and the Notes represent the agreement of Mondelēz, the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent, Mondelēz, the Borrower or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the Notes other than the matters referred to in Sections 2.09(b) and 9.04(a), the Fee Letter and any other fee letters entered into among Mondelēz and the Joint Bookrunners, if any, and except for any confidentiality agreements entered into by Lenders in connection with this Agreement or the transactions contemplated hereby. | 52Integration
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The closing under this Agreement (the “Closing”) shall take place at 7:00 a.m. on May 10, 2017 (the “Closing Date”), at the offices of the Company, or such other time and/or place as may be agreed to by the Company and the Investors. If all of the conditions set forth in Sections 7 and 8 are not satisfied by such date, subject to extension as provided in this Agreement, the Company or the Investors, as the case may be in connection with the applicable condition, shall have the right, but not the obligation, to postpone the Closing from time to time, but not beyond an additional ten (10) days in the aggregate. Notwithstanding the foregoing, if the failure to satisfy a condition is a breach of this Agreement, exercise of an option provided in this Section 9.1 shall not constitute a waiver of such breach or of the right to seek damages for such breach. | 18Closings
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Each of Holdings and the Parent Borrower will, and will cause each Guarantee Party and each Additional Grantor to, execute any and all further documents, financing statements, agreements and instruments, and take all such further actions, which may be required under any applicable law, or which the Administrative Agent or the Required Revolving Lenders may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Guarantee Parties and the Additional Grantors. Holdings and the Parent Borrower also agree to provide to the Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents. | 45Further Assurances
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The term (the “ Option Term ”) of the Option shall commence on the date of this Agreement and shall expire on the Expiration Date set forth in the Notice of Grant unless such Option shall theretofore have been terminated in accordance with the terms of the Notice of Grant, this Agreement or of the Plan. | 89Terms
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Prior to closing, Seller shall at its sole expense, provide title opinions prepared by attorneys of Seller’s choosing, covering each of the leases from the date of Patent to a date not earlier than the date this Agreement is executed. Buyer may at its sole cost and expense review such title opinions and conduct such examination of title relating to and the Leases as it sees fit and shall notify Seller in writing, on or before Closing, of any title defect which Buyer requests Seller to cure before closing. In the event Buyer notifies Seller of any defects, Seller shall attempt to cure same. In the event of a title defect which Seller is unable to cure, the parties shall use reasonable efforts to agree on an adjustment of the Purchase Price. In the event the parties are unable to reach such an agreement, Buyer or Seller may terminate this Agreement by giving written notice to the other Party on or before Closing. | 90Titles
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With respect to each Primary Mortgage Loan, during the time the Seller has serviced such Primary Mortgage Loan, all taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments and ground rents relating to such Primary Mortgage Loan have been timely paid by the Seller in material compliance with the Applicable Requirements and Accepted Servicing Practices to the extent such items are required to have been paid pursuant to Applicable Requirements. | 87Taxes
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Each Party represents and warrants to each other Party that this Agreement is its legal, valid and binding obligation, enforceable against such Party in accordance with its terms, and will not result in any (a) violation or breach of, or be in conflict with, each Party’s respective organizational documents or material contracts, or (b) violation of any statutes, laws, rules, regulations, orders or judgments applicable to such Party. | 76Representations
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Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under this Note with any of their Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain in a comparable arm’s-length transaction with a Person who is not an Affiliate. | 91Transactions With Affiliates
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If the Company at any time proposes to file a Registration Statement or Canadian Prospectus, if applicable, with respect to any offering of its equity securities for its own account or for the account of any other Persons (a “ Company Public Sale ”) other than a Registration Statement (or substantially equivalent Canadian Prospectus) (i) on Form S-4, Form S-8 or any successor forms thereto, (ii) on any other registration form which may not be used for the registration or qualification for distribution of Registrable Securities, (iii) filed solely in connection with any employee benefit or dividend reinvestment plan, (iv) a Registration Statement relating solely to a Rule 145 transaction under the Securities Act, or (v) for any at-the-market offerings, then, (A) as soon as practicable (but in no event less than 30 days prior to the proposed date of filing of such Registration Statement or Canadian Prospectus, if applicable), the Company shall give written notice of such proposed filing to the Holder(s), and such notice shall offer the Holder(s) the opportunity to Register under such Registration Statement or Canadian Prospectus, if applicable, such number of Registrable Securities as the Holder(s) may request in writing delivered to the Company within a reasonable time of such written notice by the Company, and (B) subject to Section 5.02(c) , as soon as practicable after the expiration of such 10-day period (but in no event less than fifteen (15) days prior to the proposed date of filing of such Registration Statement or Canadian Prospectus, if applicable), the Company shall give written notice of such proposed filing to the Holders (other than the Holder(s)), and such notice shall offer each such Holder the opportunity to Register under such Registration Statement or Canadian Prospectus, if applicable, such number of Registrable Securities as such Holder may request in writing within ten (10) days of delivery of such written notice by the Company. Subject to Sections 5.02(b) and (c) , the Company shall include in such Registration Statement or Canadian Prospectus, if applicable, all such Registrable Securities that are requested by Holders to be included therein in compliance with the immediately foregoing sentence (a “ Piggyback Registration ”); provided that if at any time after giving written notice of its intention to Register any equity securities and prior to the effective date of the Registration Statement or Canadian Prospectus, if applicable, filed in connection with such Piggyback Registration, the Company shall determine for any reason not to Register or to delay Registration of the equity securities covered by such Piggyback Registration, the Company shall give written notice of such determination to each Holder that had requested to Register its, his or her Registrable Securities in such Registration Statement or Canadian Prospectus, if applicable, and, thereupon, (1) in the case of a determination not to Register, shall be relieved of its obligation to Register any Registrable Securities in connection with such Registration (but not from its obligation to pay the Registration Expenses in connection therewith, to the extent payable), and (2) in the case of a determination to delay Registering, shall be permitted to delay Registering any Registrable Securities, for the same period as the delay in Registering the other equity securities covered by such Piggyback Registration. If the offering pursuant to such Registration Statement or Canadian Prospectus, if applicable, is to be underwritten, the Company shall so advise the Holders as a part of the written notice given pursuant to this Section 5.02(a) , and each Holder making a request for a Piggyback Registration pursuant to this Section 5.02(a) must, and the Company shall make such arrangements with the managing underwriter or underwriters so that each such Holder may, participate in such Underwritten Offering, subject to the conditions of Sections 5.02(b) and (c) . If the offering pursuant to such Registration Statement or Canadian Prospectus, if applicable, is to be on any other basis, the Company shall so advise the Holders as part of the written notice given pursuant to this Section 5.02(a) , and each Holder making a request for a Piggyback Registration pursuant to this Section 5.02(a) must, and the Company shall make such arrangements so that each such Holder may, participate in such offering on such basis, subject to the conditions of Section 5.02(b) and (c) . Each Holder shall be permitted to withdraw all or part of its Registrable Securities from a Piggyback Registration at any time prior to the effectiveness of such Registration Statement or Canadian Prospectus, if applicable. | 67Participations
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The Borrower and each Subsidiary is in compliance in all material respects with the requirements of all laws and regulations of all Governmental Authorities applicable to it and all orders, writs, injunctions and decrees of Governmental Authorities applicable to it or to its properties, except in such instances in which (a) such requirement of law, regulation or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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The proceeds of any Letters of Credit and any Loans shall be applied by the Borrower for working capital or general corporate purposes of the Borrower or any of its Subsidiaries, including to fund the repayment of the Existing Indebtedness and the payment of fees and expenses incurred in connection therewith. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. | 92Use Of Proceeds
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All notices, requests, demands and other communications called for or contemplated hereunder shall be in writing and shall be deemed to have been duly given (i) if delivered personally, upon delivery, (ii) if delivered by facsimile, upon facsimile confirmation, (iii) if delivered by mail, upon the date of delivery shown in the return receipt (or if none shown, five (5) days after deposit in the mail) when placed in the United States mails and forwarded by registered or certified mail, return receipt requested, postage prepaid, and (iv) if delivered by overnight courier, one day after being sent to the recipient by reputable overnight courier service (charges prepaid), each addressed to the party to whom notice is being given at the addresses set forth herein or such other address as may be subsequently designated in writing. | 65Notices
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As of the First Amendment Effective Date, no Default or Event of Default shall have occurred which is continuing. | 62No Defaults
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The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any state or federal court located in the State of New York, in addition to any other remedy to which they are entitled at Law or in equity. | 81Specific Performance
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This Agreement and the PIIA, when signed by Executive, set forth the terms of Executive’s employment with the Company and supersede any and all prior representations and agreements, whether written or oral. | 46General
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Section 10.1 of the Lease is deleted and the following Section 10.1 is substituted in place of the deleted Section 10.1. | 65Notices
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Member hereby represents and warrants to Company as follows: Member is a corporation, duly organized and validly existing under the laws of the State of California; this Agreement and all documents executed by Member which are to be delivered to Company at the Closing are and at the time of Closing will be duly authorized, executed and delivered by Member, are and at the time of Closing will be legal, valid and binding obligations of Member enforceable against Member in accordance with their respective terms, are and at the time of Closing will be sufficient to convey title (if they purport to do so), and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Member or the Property is subject. | 76Representations
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Borrower agrees to pay to Lender on demand all reasonable costs and expenses incurred by Lender in seeking to collect this Note or to enforce any of Lender’s rights and remedies under the Loan Documents, including court costs and reasonable attorneys’ fees and expenses, whether or not suit is filed hereon, or whether in connection with bankruptcy, insolvency or appeal. Nothing in this Note shall affect the right of Lender to serve process in any manner otherwise permitted by law and nothing in this Note will limit the right of Lender otherwise to bring proceedings against Borrower in the courts of any jurisdiction or jurisdictions. | 25Costs
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As of the Closing Date, except as set forth on Schedule 4.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of Holdings or any Borrower, threatened in writing by or against any Group Member or against any of their respective material properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that would reasonably be expected to have or result in a Material Adverse Effect. | 58Litigations
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EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11. | 96Waiver Of Jury Trials
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By accepting the PRSUs, the Participant acknowledges that the Participant agrees to comply with applicable Brazilian laws and to pay any and all applicable taxes associated with the vesting of the PRSUs, the receipt of any dividends, and the sale of Shares acquired under the Plan. | 19Compliance With Laws
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Each party represents, warrants and covenants that, to the best of its knowledge, neither Landlord nor Tenant is in default of any of its respective obligations under the Existing Lease and no event has occurred that, with the passage of time or the giving of notice (or both) would constitute a default by either Landlord or Tenant thereunder. | 62No Defaults
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The acceptance of Bank at any time and from time to time of part payment on the Indebtedness shall not be deemed to be a waiver of any Event of Default then existing. No waiver by Bank of any Event of Default shall be deemed to be a waiver of any other then-existing or subsequent Event of Default. No waiver by Bank of any of its Rights hereunder, in the other Loan Documents, or otherwise shall be considered a waiver of any other or subsequent Right of Bank. No delay or omission by Bank in exercising any Right under the Loan Documents shall impair such Right or be construed as a waiver thereof or any acquiescence therein, nor shall any single or partial exercise of any such Right preclude other or further exercise thereof, or the exercise of any other Right under the Loan Documents or otherwise. | 97Waivers
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Together with the Agreement, this Local Country Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. There are no agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein and therein. This Local Country Agreement supersedes all prior agreements, representations, warranties, promises, covenants, commitments or undertakings, whether written or oral, with respect to the subject matter contained in this Local Country Agreement. No amendment, modification, change, waiver, or discharge hereof will be valid unless in writing and signed by an authorized representative of the Party against which such amendment, modification, change, waiver, or discharge is sought to be enforced (except, however, that amendments to the Agreement will be applicable to this Local Country Agreement). No “click-wrap”, “shrink-wrap” or other agreement, notice or terms that accompany the Designated Services shall be effective, nor shall Local GPI’s consent to any such click-wrap, shrink-wrap or other agreement be required for Local GPI to receive the Designated Services. Local Dell (and, for avoidance of doubt, Local Dell’s Affiliates or subcontractors) will not present any terms and conditions, terms of use or agreements to Service Recipient in connection with the Services. | 38Entire Agreements
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Each member of the Borrower Affiliated Group has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid all taxes required to have been paid by it, except (a) taxes that are being contested in good faith by appropriate proceedings, for which such Person has set aside on its books adequate reserves, and as to which no Lien has arisen, or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. | 87Taxes
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This Agreement, the Addendum, the Stockholders’ Agreement and the Plan constitute the entire contract between the parties hereto with regard to the subject matter hereof. They supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof. | 38Entire Agreements
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The Company has full power and authority and has taken all requisite action on the part of the Company, its officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) the authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance (or reservation for issuance) and delivery of the Shares (the “ Securities ”). The Transaction Documents constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally. | 10Authorizations
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Your Restricted Stock Units are also subject to your complying with and not breaching the non-compete, confidentiality, and non-solicitation covenants that you were required to sign as a condition of your employment with the Company. | 20Confidentiality
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Comply, in all material respects, with all applicable Requirements of Law, including (a) ERISA, (b) Environmental Laws, (c) Anti-Terrorism Laws and (d) all permits, licenses, registrations, approvals and authorizations (i) related to any natural or environmental resource or media located on, above, within, related to or affected by any Property of the Borrowers, (ii) required for the performance of the operations of the Borrowers, or (iii) applicable to the use, generation, handling, storage, treatment, transport, or disposal of any Hazardous Substances; and use its best efforts to cause all employees, agents, contractors, subcontractors and future lessees (pursuant to appropriate lease provisions) of the Borrowers, while such Persons are acting within the scope of their relationship with the relevant Borrower, to comply with all such Requirements of Law as may be necessary or appropriate to enable the relevant Borrower to so comply. | 19Compliance With Laws
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Any notice, request, consent or approval required or permitted to be given under this Separation Agreement or pursuant to law shall be sufficient if in writing, and if and when sent by certified or registered mail, with postage prepaid, to Executive’s residence, 6521 Vanderbilt Street, Houston, Texas 77005 (with a copy to Executive’s counsel, which shall not constitute notice, Olshan Frome Wolosky LLP, 1325 Avenue of the Americas, New York, New York 10019, Attention: Steve Wolosky, [email protected]), or to the Company’s principal office to the attention of the Company’s Chief Legal Officer, as the case may be. | 65Notices
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The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of the later of their respective dates or the most recent amendment to a respective SEC Report, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. | 43Financial Statements
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The Company shall (a) by 9:00 a.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 (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. 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 Trading Market, 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 with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b), to the extent reasonably practical. | 71Publicity
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Agent, each Lender and each Transferee shall hold all non-public information obtained by Agent, such Lender or such Transferee pursuant to the requirements of this Agreement in accordance with Agent’s, such Lender’s and such Transferee’s customary procedures for handling confidential information of this nature; provided, however, Agent, each Lender and each Transferee may disclose such confidential information (a) to its examiners, Affiliates (if such Person is a GSO Entity, then it may make disclosures to any other GSO Entity and its Related Parties), outside auditors, counsel and other professional advisors, (b) to Agent, any Lender or to any prospective Transferees, (c) to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in connection with the administration, servicing and reporting on the assets serving as collateral for securities issued by a GSO Entity or to any current or prospective funding source of any GSO Entity, (d) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such person, any GSO Entity or any of their respective Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners) and which shall include, without limitation any routine audits conducted by such regulatory authority, and (e) as required or requested by any Governmental Body or representative thereof or pursuant to legal process; provided, further that (i) unless specifically prohibited by Applicable Law, Agent, each Lender and each Transferee shall use its reasonable best efforts prior to disclosure thereof, to notify the applicable Credit Party of the applicable request for disclosure of such non-public information (A) by a Governmental Body or representative thereof (other than any such request in connection with an examination of the financial condition of a Lender or a Transferee by such Governmental Body) or (B) pursuant to legal process and (ii) in no event shall Agent, any Lender or any Transferee be obligated to return any materials furnished by any Credit Party other than those documents and instruments in possession of Agent or any Lender in order to perfect its Lien on the Collateral once the Obligations have been paid in full and this Agreement has been terminated. Each Credit Party acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to such Credit Party or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and each Credit Party hereby authorize each Lender to share any information delivered to such Lender by such Credit Party and their Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter into this Agreement, to any such Subsidiary or Affiliate of such Lender, it being understood that any such Subsidiary or Affiliate of any Lender receiving such information shall be bound by the provisions of this Section 14.15 as if it were a Lender hereunder. Such authorization shall survive the repayment of the other Obligations and the termination of this Agreement. | 20Confidentiality
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Except as disclosed in the Borrower’s filings with the SEC from time to time, there are no actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. | 58Litigations
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PLS shall keep all property useful and necessary in its business in good working order and condition except to the extent that the failure to do so could not reasonably be expected to result in a material Adverse Effect. PLS shall maintain a fidelity bond and be covered by insurance of the kinds and in the amounts customarily maintained by such similarly situated entities in the same jurisdiction and industry as PLS, in amounts acceptable to Ginnie Mae except to the extent that the failure to do so could not reasonably be expected to result in a material Adverse Effect. | 51Insurances
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Except for the filing of the Certificate of Designation with the Secretary of State of Delaware, the execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale of the Securities require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws and post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods. Subject to the accuracy of the representations and warranties of each Investor set forth in Section 5 hereof, the Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii) the issuance of the Conversion Shares upon due conversion of the Preferred Shares, (iii) the issuance of the Warrant Shares upon due exercise of the Warrants, and (iv) the other transactions contemplated by the Transaction Documents from the provisions of any stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Company’s Certificate of Incorporation or Bylaws that is or could reasonably be expected to become applicable to the Investors as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the Investors or the exercise of any right granted to the Investors pursuant to this Agreement or the other Transaction Documents. | 22Consents
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