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If any of the restrictions or obligations contained in Section 8 shall be determined by any court of competent jurisdiction to be unenforceable by reason of their extending for too great a period of time or over too great a geographical area or by reason of their being too extensive in any other respect, such provision shall be modified to be effective for the maximum period of time for which it may be enforceable and over the maximum geographical area as to which it may be enforceable and to the maximum extent in all other respects as to which it may be enforceable. | 79Severability
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This instrument shall be deemed to be an agreement made under the laws of the state where the Real Property is located and for all purposes shall be governed by and construed in accordance with such laws. | 47Governing Laws
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This Repurchase Agreement and the other Repurchase Documents embody the entire agreement and understanding of the parties hereto and thereto and supersede any and all prior agreements, arrangements and understandings relating to the matters provided for herein and therein. No alteration, waiver, amendments, or change or supplement hereto shall be binding or effective unless the same is set forth in writing by a duly authorized representative of each party hereto. This Repurchase Agreement and the other Repurchase Documents represent the agreement of the Buyer and the Seller with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Buyer relative to the subject matter hereof or thereof not expressly set forth or referred to herein or in the other Repurchase Documents. | 38Entire Agreements
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Upon the expiration or earlier termination of this Agreement, Tenant shall reasonably cooperate with Landlord or its designee, in connection with Landlord’s efforts to transfer and assign to Landlord or its designee all Leased Intangible Property, including, without limitation, any contracts, agreements, leases, licenses, permits, development rights, telephone exchange numbers (identified with the Leased Property), approvals and certificates and all other intangible rights, benefits and privileges of any kind or character with respect to the Leased Property and/or the Resort Personal Property, including, but not limited to the Leased Intellectual Property, useful or required in connection with the Leased Property and/or the Resort Personal Property or Resort Operations. Each party shall bear its own costs in connection with such efforts. If requested by Landlord and to the extent permitted by law Tenant shall provide a collateral assignment of such licenses and other intangible rights held by Tenant (other than intangible rights belonging solely to Tenant, and not held by Tenant on behalf of Landlord) as further security for Tenant’s obligations hereunder (except to the extent required to be assigned upon the request of the landlord under the Personal Property Lease). | 1Agreements
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During the Term, Executive shall be entitled to paid vacation each year, in accordance with the plans, policies, programs and practices of the Company applicable to similarly situated employees of the Company generally. | 93Vacations
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Except as described in the SEC Reports, the Company has good and marketable title to its properties and assets, including the properties and assets reflected in the most recent balance sheet included in the Company’s financial statements, and good title to its leasehold estates, in each case subject to no Encumbrances, other than (a) those resulting from taxes which have not yet become delinquent; and (b) Encumbrances which do not materially detract from the value of the property subject thereto or materially impair the operations of the Company; and (c) those that have otherwise arisen in the ordinary course of business, none of which are material. The Company is in compliance with all material terms of each lease to which it is a party or is otherwise bound. | 57Liens
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At all times prior to the Closing Date or the earlier termination of this Agreement in accordance with its terms, the Company and the Investors shall consult with each other prior to issuing any press releases, public documents and public filings (and provide each other a reasonable opportunity to review and comment upon such release, and the Company will consider in good faith any comments the Requisite Investors have to any such documents) or otherwise making public announcements with respect to the transactions contemplated by this Agreement; provided that nothing in this Section 26 shall prohibit any party hereto from filing any motions or other pleadings or documents with the Bankruptcy Court in connection with the Chapter 11 Cases. | 71Publicity
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This Assignment may be signed in any number of counterparts, each of which will be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. | 26Counterparts
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Any controversy, claim or dispute between the parties relating to Executive’s employment or termination of employment, whether or not the controversy, claim or dispute arises under this Agreement, shall be resolved by arbitration in New York County, New York, in accordance with the Employment Arbitration Rules and Mediation Procedures (“ Rules ”) of the American Arbitration Association through a single arbitrator selected in accordance with the Rules. The decision of the arbitrator shall be rendered within 30 days of the close of the arbitration hearing and shall include written findings of fact and conclusions of law reflecting the appropriate substantive law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in the State of New York. In reaching his or her decision, the arbitrator shall have no authority (a) to authorize or require the parties to engage in discovery (provided, however, that the arbitrator may schedule the time by which the parties must exchange copies of the exhibits that, and the names of the witnesses whom, the parties intend to present at the hearing), (b) to change or modify any provision of this Agreement, (c) to base any part of his or her decision on the common law principle of constructive termination, or (d) to award punitive damages or any other damages not measured by the prevailing party’s actual damages and may not make any ruling, finding or award that does not conform to this Agreement. Each party shall bear all of his or its own legal fees, costs and expenses of arbitration to the fullest extent permitted by applicable law, and one-half (1/2) of the costs of the arbitrator. | 6Arbitration
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Each capitalized term that is defined in the Credit Agreement, but that is not defined in this Ninth Amendment, shall have the meaning ascribed to such term in the Credit Agreement. Unless otherwise indicated, all section references in this Ninth Amendment refer to the Credit Agreement. | 28Defined Terms
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Lessee shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties from and against any and all Losses, including, but not limited to, all Costs of Remediation (whether or not performed voluntarily), arising out of or in any way relating to any Environmental Laws, Hazardous Materials, Regulated Substances, above or below ground storage tanks, or other environmental matters concerning the Property, to the extent caused by or through Lessee. It is expressly understood and agreed that Lessee’s obligations under this Section shall survive the expiration or earlier termination of this Lease for any reason. | 49Indemnifications
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The Company confirms that neither it nor any person acting on its behalf has provided the Shareholders or their respective agents or counsel with any information that the Company believes constitutes material, non-public information, except insofar as the existence and terms of the proposed transactions hereunder may constitute such information and except for information that will be disclosed by the Parent under a current report on Form 8-K filed no later than four (4) business days after the Closing. The Company understands and confirms that the Parent will rely on the foregoing representations and covenants in effecting transactions in securities of the Parent. All disclosure provided to the Parent regarding the Company, its business and the Transactions, furnished by or on behalf of the Company (including the Company’s representations and warranties set forth in this Agreement) are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. | 31Disclosures
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The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby does not and will not (upon the giving of notice or the passage of time or both): (i) result in a violation of the Company’s Organizational Documents, (ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company is a party or (iii) result in a violation of any Applicable Law applicable to the Company or by which any property or asset of the Company is bound or affected except to the extent such violations or conflict could not reasonably be expected to have a Material Adverse Effect. | 61No Conflicts
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The Company shall (i) indemnify the Advisor and its respective Affiliates, directors, officers, employees and agents (collectively, the “ Indemnified Party ”), to the fullest extent permitted by law, from and against any and all actions, causes of action, suits, claims, liabilities, losses, damages and costs and expenses in connection therewith, including without limitation reasonable attorneys’ fees and expenses (“ Indemnified Liabilities ”) to which the Indemnified Party may become subject, directly or indirectly caused by, related to or arising out of the Services or any other advice or Services contemplated by this Agreement or the engagement of the Advisor pursuant to, and the performance by such Advisor of the Services contemplated by, this Agreement, and (ii) promptly reimburse the Indemnified Party for Indemnified Liabilities as incurred, in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of the Company or Advisor and whether or not resulting in any liability. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Company hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. | 49Indemnifications
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If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, provided that the economic and legal substance of, any of the Transactions is not affected in any manner materially adverse to any party. In the event of any such determination, the parties agree to negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intent and purpose hereof. To the extent permitted by law, the parties hereby to the same extent waive any provision of law that renders any provision hereof prohibited or unenforceable in any respect. | 79Severability
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This Agreement and the Credit Documents collectively state the entire agreement of, and supersede all prior agreements, written or verbal, between the parties hereto with respect to the subject matter hereof and thereof, and this Agreement may not be amended except in writing signed by such parties as are required by the terms of the Amended Credit Agreement. Except as specifically modified by this Agreement, the Credit Agreement, the Guarantee and Collateral Agreement and the other Credit Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms. | 38Entire Agreements
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You shall continue in your role as President, Americas, and shall continue to be responsible for overseeing the Company’s operations in the United States, Canada, Mexico and Brazil. You shall continue to report to the Company’s Chief Executive Officer. It is understood and agreed, however, that since the Company’s Chief Executive Officer position is currently open, you shall continue reporting to the Company’s designated Office of the CEO until a new Chief Executive Officer is hired. You shall remain on the payroll of, and shall continue to be an employee of, Weight Watchers Canada, Ltd. (“WWCL”). This shall continue to be an exempt position and, as such, you will not be eligible to receive overtime. | 90Titles
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This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective agents, executors, present and future parents, subsidiaries, affiliates, heirs, successors, and assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person or entity other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement, except that all persons and entities released pursuant to Sections 2 and 3 of this Agreement are intended beneficiaries of such release. | 13Binding Effects
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Consultant will take all reasonable and appropriate steps and measures to ensure the safety of individuals and property in the vicinity of where the Services are being performed. Consultant will indemnify, defend and save and hold harmless Intrepid, its subsidiaries and affiliates, and their respective members, managers, directors, officers, employees and agents, from and against any and all losses, liabilities, damages, fines, penalties, claims, actions or suits, including costs and attorneys’ fees, for or on account of any injury, bodily or otherwise, to or death of persons, damage to or destruction of property belonging to Intrepid or others, or violation of any law, regulation, decree, code, ordinance or other act of any governmental authority to the extent resulting from Consultant’s fault, negligence, willful misconduct, or breach of this Agreement. Intrepid will indemnify, defend and save and hold harmless Consultant from and against any and all losses, liabilities, damages, fines, penalties, claims, actions or suits, including costs and attorneys’ fees, for or on account of any injury, bodily or otherwise, to or death of persons, damage to or destruction of property belonging to Consultant or others, or violation of any law, regulation, decree, code, ordinance or other act of any governmental authority to the extent resulting from Intrepid’s fault, negligence, willful misconduct, or breach of this Agreement. | 49Indemnifications
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This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Amendment may be delivered by facsimile transmission of the relevant signature pages hereof. | 26Counterparts
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The Borrower shall use the proceeds of the Loans and the Letters of Credit solely as set forth in Section 5.16 . | 92Use Of Proceeds
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Capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the meanings given to such terms in the Note. Unless otherwise defined herein, all terms used herein and defined in the UCC shall have the same definitions herein as specified therein; provided , however , that if a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term shall have the meaning specified in Article 9 of the UCC. | 28Defined Terms
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Debtor does not intend to maintain any insurance coverage for the Collateral, but shall cooperate with Secured Party to obtain coverage at Secured Party’s sole discretion. | 51Insurances
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Subject to, and in accordance with the provisions of Article 3 of the Plan, any dispute or claim arising out of or relating to the Plan, this Agreement or the Notice shall be settled by binding arbitration before a single arbitrator in Jacksonville, Florida and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall decide any issues submitted in accordance with the provisions and commercial purposes of the Plan, this Agreement and the Notice, provided that all substantive questions of law shall be determined in accordance with the state and federal laws applicable in Florida, without regard to internal principles relating to conflict of laws. | 6Arbitration
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The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of any other provision of this Agreement. | 79Severability
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Upon the terms and subject to the conditions of this Agreement, Seller agrees to sell, convey, assign, transfer and deliver to the Company, and the Company agrees to purchase from Seller, all of the Purchased Shares, free and clear of any and all mortgages, pledges, encumbrances, liens, security interests, options, charges, deeds of trust, deeds to secure debt, title retention agreements, rights of first refusal or offer, limitations on voting rights, proxies, voting agreements, limitations on transfer or claims of any kind or nature whatsoever (collectively, “ Liens ”), with the obligations of Seller understood to be the several obligations of Oaktree Tribune, L.P. and OCM FIE, LLC, each with respect only to the Purchased Shares owned by it. | 57Liens
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All amounts withheld pursuant to the Code or any federal, state, local or foreign tax law with respect to any payment, distribution or allocation to the Company in respect of a Member shall be treated for all other purposes of this Agreement as amounts distributed to such Member. In addition, the Managing Member is authorized to withhold from Distributions to Members, and to pay over to the appropriate federal, state, local or foreign government any amounts so required to be withheld, and any such withheld amounts shall be treated as amounts loaned to such Member. The withholdings by the Company referred to in this Section 6.4 shall be made at the maximum statutory rate under applicable laws unless the Company has received an opinion of counsel, or other evidence satisfactory to the Managing Member, that a lower rate is applicable, or that no withholding is required or otherwise necessary. The provisions of this Section 6.4 shall survive the termination, dissolution and winding up of the Company. All Members shall provide the Managing Member with a properly completed and signed W-9 upon becoming a Member and at such times as requested by the Managing Member. | 99Withholdings
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The Company or the Committee shall have the right to require any person entitled to receive Shares pursuant to a Restricted Stock Award to pay the amount of any tax which is required to be withheld with respect to such Shares, or, in lieu thereof, to retain, or to sell without notice, or the person receiving the Shares pursuant to the Restricted Stock Award may otherwise satisfy the tax withholding requirement by surrendering, a sufficient number of shares of the Company’s capital stock to cover the amount required to be withheld. | 87Taxes
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Borrower will give notice to Agent within five (5) Business Days after Borrower or any ERISA Affiliate (i) gives or is required to give notice to the PBGC of any ERISA Reportable Event with respect to any Guaranteed Pension Plan, or knows that the plan administrator of any such plan has given or is required to give notice of any such ERISA Reportable Event; (ii) receives a copy of any notice of withdrawal liability under Title IV of ERISA with respect to a Multiemployer Plan; or (iii) receives any notice from the PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any Guaranteed Pension Plan. | 39Erisa
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Obligors have developed and implemented and maintain in effect internal controls, policies and procedures, management oversight, monitoring, audit and training designed to ensure compliance by Obligors, their Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws and applicable Sanctions. Obligors, their Subsidiaries and, to the knowledge of any Obligor, their respective officers, employees, directors and agents are in compliance with Anti-Corruption Laws and applicable Sanctions. None of (a) Obligors, any Subsidiary or any of their respective directors or officers, or (b) to the knowledge of any Obligor, any employee or agent of any Obligor or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person or otherwise subject to Sanctions. No Borrowing, use of proceeds or other transaction will violate Anti-Corruption Laws or applicable Sanctions. | 3Anti-Corruption Laws
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There are no actions, suits or proceedings pending or, to such Company’s knowledge, threatened against or affecting such Company or any of its Subsidiaries or the properties of such Company or any of its Subsidiaries before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which could reasonably be expected to result in a final judgment or judgments against such Company or any of its Subsidiaries in an amount in excess of $1,000,000, apart from those matters specifically disclosed to Wells Fargo in writing. Without limiting the foregoing, the Company is involved in various actions, suits and proceedings in the ordinary course of business; however, as of September 28, 2017, there are no actions, suits or proceedings that have a high probability of settling and are reasonably estimable in an amount in excess of $100,000. | 58Litigations
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On the Closing Date, 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 up to $10,000,000 of Shares and Warrants as calculated pursuant to Section 2.2(a). Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company. The Company shall deliver to each Purchaser its respective Shares and 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, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“ DVP ”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares and deliver the Warrants in physical form to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). | 18Closings
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This Third Amendment shall be a contract made under and governed by the internal laws of the State of Illinois applicable to contracts made and to be performed entirely within such state, without regard to conflict of laws principles. | 47Governing Laws
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Each of the parties (a) will make, or cause to be made, all filings and submissions under laws, rules and regulations applicable to it, or to its subsidiaries and Affiliates, as may be required for such party to consummate the transactions contemplated by this Agreement, (b) will use its respective commercially reasonable efforts to obtain, or cause to be obtained, all authorizations, approvals, consents, qualifications, orders and waivers from all Persons necessary to be obtained by it in order to consummate such transactions, and (c) will use its commercially reasonable efforts to take, or cause to be taken, all other actions necessary, proper or advisable in order for it to fulfill its respective obligations under this Agreement. In furtherance of the foregoing, the Company will: (i) keep authorized and reserved for issuance a sufficient number of shares of Common Stock to enable the issuance of the Shares to be issued at the Closing or a Subsequent Closing; and (ii) use commercially reasonable efforts to timely file all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act of 1934, including pursuant to Section 13(a) or 15(d) thereof, until the expiration or termination of the Celgene Parties’ registration right pursuant to Sections 6(i)(A) or (B) of the Registration Rights Agreement. | 97Waivers
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This Agreement and the exhibits and schedules attached hereto constitute the entire agreement and understanding between the parties hereto in respect of the subject matter hereof and supersede any prior or contemporaneous agreements or understandings between the parties, written or oral, which relate to the subject matter hereof but specifically excluding any confidentiality agreements entered into between the parties or their affiliates. Amendments to this Agreement may only be made in writing and executed by Purchaser and Seller. | 38Entire Agreements
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The Company may withhold from any payments made under this Agreement all applicable taxes, including, but not limited to, income, employment, and social insurance taxes, as shall be required by law. | 87Taxes
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If the Term A Loans are increased in accordance with this Section, the Administrative Agent shall promptly notify the Borrower and the Lenders of the amount and effective date (the “ Term Increase Effective Date ”) of such increase. As of the Term Increase Effective Date, this Agreement shall be amended to (i) reflect the incremental Term A Loans being made on the Term Increase Effective Date and the joinder to this Agreement of any Eligible Assignees making any such incremental Term A Loans and (ii) increase each then-remaining unpaid installment of principal of the Term A Loans payable pursuant to Section 2.04(a) prior to the Maturity Date by an amount such that (A) the increase for each such installment equals the product of (x) the percentage of the initial principal amount of the existing Term A Loans payable on each such installment date multiplied by (y) the aggregate amount of such incremental Term A Loans and (B) the aggregate principal payments payable pursuant to Section 2.04(a) (including the proviso thereto) are increased by the aggregate amount of the incremental Term A Loans being made on the Term Increase Effective Date. Such amendment shall be executed and delivered by the Administrative Agent, the Loan Parties and each Lender and Eligible Assignee making any such incremental Term A Loan without the consent of any other party. Such amendment shall be in form and substance reasonably satisfactory to the Administrative Agent. On the Term Increase Effective Date, each incremental Term A Loan made on such date shall be deemed a Term A Loan for all purposes hereof (including without limitation for purposes of the payment and amortization requirements of Section 2.04(a) ) and the holder thereof shall be deemed a Term A Lender for all purposes hereof. | 33Effective Dates
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The term of this Agreement begins on September 1, 2017 and ends on December 31, 2019 (the “ Term ”). The Term will be automatically extended for successive one year periods unless either party provides written notice of non-renewal to the other party at least 90 days prior to the applicable renewal date. | 89Terms
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This Note has been, or will be, duly executed and delivered by the Company and constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. | 36Enforceability
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Neither Party will disparage the other Party or the Product or Services. Notwithstanding the foregoing, the following actions shall not be considered disparaging: (i) the action taken is related to drug interactions with other prescription or over-the-counter drug products, (ii) the action taken is related to contraindications for such Product; (iii) the action taken involves displaying or communicating relative Patient costs or coverage, (iv) or as otherwise may be consistent with ESSDS’s independent exercise of the practice of pharmacy in accordance with all Applicable Law. | 64Non-Disparagement
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Notwithstanding any other provision of this Stock Agreement, Participant hereby agrees that if his or her employment with First Financial or a Subsidiary is terminated for any reason, voluntarily or involuntarily (other than due to retirement, death, or disability), whether by resignation or dismissal for Cause or otherwise, during the Performance Period, the Award shall be forfeited and all related rights with respect to all shares of Stock that are subject to the Award shall be forfeited automatically as of the date of such termination of employment. | 44Forfeitures
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This Guaranty Agreement is for the benefit of Lender, and its successors and assigns, and in the event of an assignment by Lender (in accordance with the terms of the Loan Agreement) of the Guaranteed Obligations, or any part thereof, the rights and benefits hereunder, to the extent applicable to the indebtedness, liabilities, and obligations so assigned, shall be deemed transferred with such indebtedness, liabilities, and obligations without necessity of further express action. This Guaranty Agreement is binding upon each Guarantor and its successors and assigns. | 13Binding Effects
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In addition to any rights and remedies available to the parties hereunder or at law, each party shall be entitled to bring an action for specific performance and to seek other equitable relief in connection with any breach or violation, or any attempted breach or violation, of the provisions of this Agreement, without the necessity of showing actual damages or furnishing bond or other security. | 81Specific Performance
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This Waiver shall be governed by, and construed in accordance with, the laws of the State of New York. The parties agree that the state and federal courts located in New York County, New York shall have exclusive jurisdiction over any action, proceeding or dispute arising out of this Waiver and the parties submit to the personal jurisdiction of such courts. | 47Governing Laws
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From and after the Closing, each of Daily Engage and the Members shall, and shall cause its or their Affiliates to, hold, and shall use its or their reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Buyer, except to the extent that Daily Engage and/or the Member can show that such information (a) is generally available to and known by the public through no fault of Daily Engage and/or the Member, any of its or their Affiliates or their respective Representatives; or (b) is lawfully acquired by Daily Engage and/or the Member, any of its or their Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Daily Engage and/or the Member or any of its or their Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Daily Engage and/or the Member shall promptly notify Buyer in writing and shall disclose only that portion of such information which Daily Engage and/or the Member is advised by its counsel in writing is legally required to be disclosed, provided that Daily Engage and/or the Member shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information. | 20Confidentiality
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Any notice required or permitted to be given hereunder shall be in writing and shall be given by hand delivery, by e-mail, by facsimile, or by first class registered or certified mail, postage prepaid, addressed, if to the Company, to its Corporate Secretary, and if to Executive, to Executive’s address now on file with the Company, or to such other address as either may designate in writing. Any notice shall be deemed to be duly given as of the date delivered in the case of personal delivery, e-mail, or facsimile, or as of the second day after enclosed in a properly sealed envelope and deposited, postage prepaid, in a United States post office, in the case of mailed notice. | 65Notices
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For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. | 55Interpretations
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In connection with the provision and receipt, as applicable, of Services, the parties shall cooperate with each other with regard to the exchange of information and the conduct of the Business. | 24Cooperation
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(a) The Borrowers jointly and severally agree to pay to the Administrative Agent for the account of the Revolving Banks a commitment fee, which shall accrue at the Applicable Margin on the daily unused amount of the Revolving Commitments of each Revolving Bank during the period from and including the date hereof to but excluding the date on which such Revolving Commitment terminates. Accrued commitment fees shall be payable quarterly in arrears on each March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the date of this Agreement, and upon the date of termination of the Revolving Commitments in their entirety. All commitment fees shall be computed on the basis of a year of 360 days, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Bank shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure in respect of such Class of such Bank (and any Swingline Exposure of such Bank shall be disregarded for such purpose and no portion of the Dollar Revolving Commitments shall be deemed utilized as a result of outstanding Swingline Loans). | 42Fees
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The Company will employ Executive as the sole President of the Company. Other than Robert Ellin (“ Ellin ”) serving in his capacity as the Chief Executive Officer of the Company (the “ CEO ”), Executive will be the most senior executive officer of the Company and of each and all of its Affiliates (as defined in Section 9.5(a) ) (the Company, together with all of its Affiliates, are referred to herein collectively as the “ Company Group ”). Executive will report solely and directly (a) to Ellin at any time that Ellin is serving as the CEO, or (b) to Ellin at any time that Ellin is serving as Chairman of the board of directors of the Company (the “ Chairman ” and the “ Board, ” respectively) but is not serving as the CEO, or (c) to the Board at any time that Ellin is neither the CEO nor the Chairman. Other than Ellin serving in his capacity as the CEO, no other employee or officer of the Company Group will have any authorities, duties, offices, positions, powers, reporting relationships, responsibilities, or titles equal or superior to those of Executive. Other than Ellin serving in his capacity as CEO, the Company will not (x) appoint any other person to a position more senior than, or equivalent in status to, that held by Executive(whether in terms of any authorities, duties, offices positions, powers, reporting relationships, responsibilities, titles, or otherwise) including appointing any person other than Ellin or Executive to serve as CEO of the Company, (y) appoint any other person to act jointly with Executive, or (z) require Executive to share with any person any of Executive’s authorities, duties, powers, reporting relationships, responsibilities, or titles. Each and all of the employees and officers of the Company Group (including the most senior executives of each Affiliate of the Company and of the Company’s and its Affiliates’ respective operating units and divisions) will report directly to Executive or, at Executive’s election, to any designee(s) of Executive, except that at any time that Ellin is serving in his capacity as CEO, Ellin may cause the Chief Financial Officer of the Company to report directly to Ellin rather than to Executive. Notwithstanding the foregoing, with respect to any entity (other than Slacker, Inc. and Snap Interactive, Inc.)acquired by the Company which becomes an Affiliate of the Company after the Effective Date (an “ Acquired Entity ”), the failure of the Company to cause all employees of such Acquired Entity to report directly or indirectly to Executive, in and of itself, shall not constitute a breach of this Agreement or a basis for the Executive’s termination for Good Reason pursuant to Section 7.6, if the Company uses good faith efforts and reasonable diligence, exercising reasonable business judgment, to cause all employees of such Acquired Entity to report directly or indirectly to Executive. | 90Titles
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LMI will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by each Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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From time to time and without additional consideration, each party hereto shall take such further actions, as another party hereto may reasonably request as necessary for the purpose of carrying out and furthering the intent of this Agreement. | 45Further Assurances
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If any provision of this Agreement or any other document delivered under this Agreement is prohibited or unenforceable in any jurisdiction, it shall be ineffective in such jurisdiction only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such provision to the extent it is not prohibited or enforceable nor the remaining provisions hereof, nor render unenforceable such provision in any other jurisdiction, unless the effect of rendering such provision ineffective would be to substantially deviate from the expectations and intent of the respective parties in entering into this Agreement. In the event any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the parties hereto shall use reasonable best efforts to substitute a valid, legal and enforceable provision which, insofar as practical, implements the purposes hereof. | 79Severability
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The Purchaser has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms. The execution, delivery, and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by the Purchaser. | 9Authority
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During the period that Executive is employed with the Company hereunder, the Company shall pay Executive an annual base salary of not less than $600,000 (the “Base Salary”), payable in equal biweekly installments (or, if different, in accordance with the Company’s payroll practice as in effect from time to time). For all purposes under this Agreement, the term “Base Salary” shall refer to the Base Salary as in effect from time to time. | 11Base Salary
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Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. The Parties shall use all reasonable efforts to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that shall achieve, to the greatest extent possible, the economic, business and other purposes of such invalid or unenforceable provision. | 79Severability
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This Agreement supersedes any and all agreements, either oral or in writing, between the parties with respect to the employment of the Executive by the Bank and contains all of the covenants and agreements between the parties with respect to the employment of the Executive by the Bank. Each party to this Agreement acknowledges that no other representations, inducements, promises, or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not set forth herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding on either party. | 38Entire Agreements
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The Company shall commence on the effective date of the Certificate and shall have perpetual existence, unless sooner dissolved as herein provided. | 89Terms
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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same Agreement. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature. | 26Counterparts
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Notices by Agent to Pledgor or GA Tech Lessee to be effective shall be in writing (including by facsimile or electronic mail transmission), addressed or transmitted to Pledgor or GA Tech Lessee at the address, facsimile number or electronic mail address of Borrower set forth in the Loan Agreement, and shall be deemed to have been duly given or made in accordance with the terms and provisions of Section 9.02 of the Loan Agreement. | 65Notices
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You agree that the Phantom Shares are granted under and governed by the terms and conditions of the Plan and this Agreement. In the event of any conflict, the terms of the Plan shall control. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement. | 46General
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This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. All signatures to this Agreement may be transmitted by email or facsimile, and such email or facsimile will, for all purposes, be deemed to be the original signature of such Party whose signature it reproduces, and will be binding upon such Party. | 26Counterparts
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The Section headings included throughout this Agreement are for convenience only and are not intended to affect the meaning or interpretation of this Agreement. | 48Headings
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(a) In the event any Collateral is located in any area that has been designated by the Federal Emergency Management Agency as a "Special Flood Hazard Area", such Grantor shall purchase and maintain flood insurance on such Collateral (including any personal property which is located on any real property leased by such Loan Party within a "Special Flood Hazard Area"). The amount of flood insurance required by this Section shall at a minimum comply with applicable law, including the Flood Disaster Protection Act of 1973, as amended. | 51Insurances
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Acceleration . If amounts deferred under the Plan must be included in a Participant’s income under Code section 409A prior to the scheduled distribution of such amounts, distribution of such amount shall be made immediately to the Participant. | 68Payments
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During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness (“ Disability Period ”), the Executive shall continue to receive his full Base Salary set forth in Section 5(a) until his employment is terminated pursuant to Section 6(b) , and the Company may, in its discretion, designate another individual to act in the Executive’s place, and such designation shall not constitute Good Reason. In the event the Executive’s employment is terminated for Disability pursuant to Section 6(b) , (i) the Company shall (A) pay to the Executive the Final Compensation at the time and in the manner set forth in Section 8(a)(i) hereof, and, provided the Executive signs and returns the Executive Release of Claims as set forth above, (B) pay to the Executive a lump-sum cash payment equal to the sum of one year of the Executive’s Base Salary plus the total Performance Bonus as calculated pursuant to Section 8(a)(ii) , which payment shall be made on the 60th day after the Date of Termination, and (ii) the vesting and lapsing of restrictions shall automatically accelerate on all unvested or restricted equity awards awarded to the Executive prior to the Date of Termination (including, without limitation, the Time-Based Restricted Shares, the Performance Shares (which shall vest as if the highest Target Stock Price (i.e., the $69.85 threshold set forth above) had been achieved) and any restricted shares of Company common stock issued in respect of Performance Shares), and all such awards shall remain exercisable for the full life of such awards (determined without regard to the Executive’s termination of employment). The Company shall have no further obligation to the Executive upon such termination of employment. | 30Disability
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This Agreement (including Schedule 1 hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces in its entirety the Employment Agreement dated as of December 22, 2014 between the parties (the “Prior Agreement”), provided that any accrued rights and obligations of the parties thereunder as of the date hereof shall be unaffected by the execution of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any plans or policies of the Company (including the Employee Handbook), the terms of this Agreement shall control. | 38Entire Agreements
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At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith (“Documents”), including, without limitation, reasonable attorneys’ and consultants’ fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer. The Company’s obligation with respect to this transaction is to reimburse Buyer’ expenses shall be $2,000.00. | 41Expenses
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Headings as used in this Agreement are for convenience only and are not to be construed as having any substantive effect by way of limitation or otherwise. References to Sections herein are, unless otherwise indicated, references to the designated Sections of this Agreement, unless the content requires otherwise. | 48Headings
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Any dispute arising out of or relating to this Agreement or the alleged breach of it, or the making of this Agreement, including claims of fraud in the inducement, shall be discussed between the disputing parties in a good faith effort to arrive at a mutual settlement of any such controversy. If, notwithstanding, such dispute cannot be resolved, such dispute shall be settled by binding arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be a retired state or federal judge or an attorney who has practiced securities or business litigation for at least 10 years. If the parties cannot agree on an arbitrator within 20 days, any party may request that the chief judge of the District Court of Hennepin County, Minnesota, select an arbitrator. Arbitration will be conducted pursuant to the provisions of this Agreement, and the commercial arbitration rules of the American Arbitration Association, unless such rules are inconsistent with the provisions of this Agreement. Limited civil discovery shall be permitted for the production of documents and taking of depositions. Unresolved discovery disputes may be brought to the attention of the arbitrator who may dispose of such dispute. The arbitrator shall have the authority to award any remedy or relief that a court of the state of Minnesota could order or grant; provided, however, that punitive or exemplary damages shall not be awarded. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, all of its costs and fees, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses and reasonable attorneys’ fees. Unless otherwise agreed by the parties, the place of any arbitration proceedings shall be Hennepin County, Minnesota. | 6Arbitration
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EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDINGS OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. | 96Waiver Of Jury Trials
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Each representation and warranty set forth in Article IV (excluding, for any Loan made or any Letter of Credit issued, extended or increased after the Closing Date, Section 4.4 and the last sentence of Section 4.6) shall be true and correct as if made on and as of the date of such Borrowing or issuance, extension or increase in the Stated Amount of a Letter of Credit, as the case may be, before and after giving effect thereto and the application of the proceeds therefrom, unless such representation or warranty relates solely to another time, in which event such representation or warranty shall be true and correct as of such other time. | 98Warranties
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Except with respect to a Registration Default, the parties hereto acknowledge that there would be no adequate remedy at law if the Issuers fail to perform any of their obligations hereunder and that the Purchasers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Purchasers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Issuers under this Agreement in accordance with the terms and conditions of this Agreement, in any court of the United States or any State thereof having jurisdiction. | 81Specific Performance
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The proceeds of the Notes shall be used (a) to repay certain outstanding First Lien Secured Obligations and (b) to fund capital expenditures, pay fees and expenses incurred in connection with the Transactions and provide for other general corporate purposes of the Issuer and its Subsidiaries. No Group Member is engaged principally, or as one of its or their important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock (within the meaning of Regulation T, U or X of the Board). No part of the proceeds of any Note will be used for any purpose which violates the provisions of Regulations T, U or X of the Board. | 92Use Of Proceeds
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The Plan shall be governed by the laws of New York without regard to its conflicts of law provisions. | 47Governing Laws
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Employer agrees to pay Executive during the Term of Employment an annual base salary of $350,000 (“Base Salary”), which amount may be increased but may not be decreased, without the consent of Executive, during the Term of Employment. Executive’s base salary shall be paid in installments in accordance with Employer’s standard payroll policies and procedures. | 11Base Salary
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No Member, in its capacity as a Member, shall have the power to act for or on behalf of, or to bind the Company. | 9Authority
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Each Grantor will pay when due all taxes, assessments and governmental charges and levies upon the Collateral owned by such Grantor, as applicable, except (i) those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with GAAP and with respect to which no Lien exists, and (ii) those as to which the failure to pay when due could not reasonably be expected to have a Material Adverse Effect. | 87Taxes
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The Digirad Nominees agree to provide a signed agreement pursuant to which he (i) provides information required for the Company to comply with its disclosure requirements for nominating the Digirad Nominees in the Company’s proxy statement for the 2017 Meeting, (ii) consents to serve as a director of the Company, if elected, and to be included in the Company’s proxy statement and proxy card and (iii) agrees to be governed by the same protections and obligations regarding confidentiality, fiduciary duties, codes of conduct and other governance guidelines and policies of the Company as other directors, and shall be required to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees, and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company; provided , however , that the Digirad Nominees may provide confidential information of the Company which such Digirad Nominee learns in his capacity as director (collectively, “ Company Confidential Information ”) to the members of the Digirad Group, their officers, directors and advisors, as applicable (collectively, “ Digirad Representatives ”), in each case solely to the extent such Digirad Representative needs to know such information in connection with the Digirad Group’s investment in the Company; provided that such Digirad Nominee shall inform such Digirad Representatives of the confidential nature of any such Company Confidential Information; and provided further that neither the Digirad Group, any member thereof nor any other Digirad Representative (a) shall further disclose such Company Confidential Information for any reason or by any means, and (b) shall use such Company Confidential Information in any way other than in connection with the Digirad Group’s investment in the Company. By signing below, each member of the Digirad Group agrees to the confidentiality restrictions on disclosure and use of Company Confidential Information as set forth above and acknowledges that such Confidential Information may not be used in violation of this Agreement or securities laws applicable to trading on material nonpublic information. In furtherance of the foregoing, in the event of any breach of this Section 1(e) that the Company can establish by clear and convincing evidence, and without limiting other remedies of the Company, the Digirad Nominees shall tender their resignations to the Board to be accepted or rejected in the discretion of the Board. | 20Confidentiality
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The following provisions shall survive termination or expiration of this Agreement: Sections 4.1 , 7.2 and 7.3 , Articles I , V , VI , and IX , any payment of obligations accruing hereunder prior to the expiration or termination of this Agreement, any other provision which is expressly or by implication intended to continue in force after such termination or expiration and any other provision that is necessary to interpret the respective rights and obligations of the Parties hereunder. | 85Survival
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This Third Amendment may be executed by the parties hereto on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. | 26Counterparts
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EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR 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 9.10 . | 96Waiver Of Jury Trials
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Each member of the board of directors (the “ Board ”) of Iridium Communications Inc. (the “ Company ”) who is not an Employee (as defined in the Iridium Communications Inc. 2015 Equity Incentive Plan (the “ Equity Incentive Plan ”)) (each, a “ Non-Employee Director ”) will be eligible to receive cash and equity-based compensation as set forth in this Iridium Communications Inc. Compensation Program for Non-Employee Directors (this “ Program ”). Capitalized terms not explicitly defined in this Program but defined in the Equity Incentive Plan will have the same definitions as in the Equity Incentive Plan. | 46General
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Except as provided in Sections 6(b) or 9 below, the Grantee will vest with respect to 50% of the Earned Options on February 15, 2019 (or if later, the date of the Compensation Committee Certification) and 50% of the Earned Options on February 15, 2020, provided (i) the Grantee remains employed by the Company on each such vesting date, and (ii) the Grantee has duly executed this Agreement prior to the first such vesting date. Any portion of the Options granted to a Grantee that are determined not to be Earned Options shall be forfeited as of the date of the Compensation Committee Certification. Except as provided in Section 6(b), all unvested Earned Options will be automatically forfeited if the Grantee terminates employment for any reason prior to the vesting dates set forth in this Section 6(a). | 95Vesting
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Except to the extent preempted by federal law, the provisions of the Plan shall be construed and interpreted according to the laws of the State of Connecticut (other than those conflict of law rules that could lead to the application of another state’s laws). | 47Governing Laws
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All Eligible Employees are eligible to defer Bonuses under the Plan. Eligible Employees are eligible to defer Base Pay under the Plan so long as their Base Pay, as of the first day of October preceding the calendar year within which the deferral is to be made, is equal to or in excess of the sum of (1) the amount defined in Code section 401(a)(l7), which is in effect on January 1 of the calendar year to which the deferral election pertains, as adjusted by the Secretary of the Treasury under Code section 415(d), plus (2) $6,000. | 46General
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During the Employment Period, the Executive will be entitled to receive reimbursement for all reasonable expenses incurred by the Executive in accordance with the policies, practices and procedures of the Company and such reimbursements will be made no later than the last day of the year immediately following the year in which the Executive incurs the reimbursable expense. The amount of reimbursable expenses incurred in one taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. No right to reimbursement is subject to liquidation or exchange for other benefits. | 41Expenses
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From time to time, Lender may sell to one or more banks, financial institutions, or other lenders a participation in one or more of the loans or other extensions of credit made pursuant to this Agreement. However, no such participation will relieve Lender of any commitment made to the Borrower hereunder. In connection with the foregoing, Lender may disclose information concerning the Borrower and its subsidiaries, if any, to any participant or prospective participant, provided that such participant or prospective participant agrees to keep such information confidential. Patronage distributions in the event of a sale of a participation interest will be governed by Lender's Bylaws and Capital Plan (as each may be amended from time to time). A sale of a participation interest may include certain voting rights of the participants regarding the loans hereunder (including without limitation the administration, servicing, and enforcement thereof). Lender agrees to give written notification to the Borrower of any sale of a participation interest. | 67Participations
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The Participant recognizes and agrees that a violation by him or her of his or her obligations under this Section 23 may cause irreparable harm to the Company that would be difficult to quantify and that money damages may be inadequate. As such, the Participant agrees that the Company shall have the right to seek injunctive relief (in addition to, and not in lieu of any other right or remedy that may be available to it) to prevent or restrain any such alleged violation without the necessity of posting a bond or other security and without the necessity of proving actual damages. However, the foregoing shall not prevent the Participant from contesting the Company’s request for the issuance of any such injunction on the grounds that no violation or threatened violation of this Section 23 has occurred and that the Company has not suffered irreparable harm. If a court of competent jurisdiction determines that the Participant has violated the obligations of any covenant for a particular duration, then the Participant agrees that such covenant will be extended by that duration. | 81Specific Performance
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The description of Buyer’s securities and capitalization set forth under the heading “Description of Securities” in Buyer’s prospectus dated February 13, 2017 and filed with the SEC on February 14, 2017 is accurate. | 16Capitalization
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Target Company owns or possesses in the operation of its business all material authorizations which are necessary for it to conduct its business as now conducted. Neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby will require any notice or consent under or have any material adverse effect upon any such authorizations. | 53Intellectual Property
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The Borrower and its Subsidiaries have filed all U.S. federal, state and other Tax returns and reports required to be filed, and have paid or made provision for payment of all U.S. federal, state and other Taxes levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or SAP, as applicable, or (b) to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect. There is no proposed Tax assessment against the Borrower or any Subsidiary that would be reasonably likely to have a Material Adverse Effect. | 87Taxes
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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 any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below. | 87Taxes
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If it is determined that any of the provisions of this Plan, including, without limitation, any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the provisions of this Plan shall not thereby be affected and shall be given full effect, without regard to the invalid portions. | 79Severability
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This Agreement shall not be assigned without the prior written consent of the Company, the Subscriber and Borqs, and any assignment without such consent shall be null and void ab initio. Notwithstanding the foregoing, the Company and Borqs will not unreasonably withhold, delay or condition their consent to transfer and assign all or a proportion of the Subscriber’s obligations under this Agreement to an investor that is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or an institutional “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act and who otherwise is reasonably expected to be capable of satisfying the Subscriber’s obligations transferred to such assignee. Such assignee shall be entitled to receive a proportionate share of the Guarantee Escrow Shares based on the portion of the Subscriber’s obligations transferred to such assignee, as well as entitled to receive the rights and obligations of the Subscriber under the Registration Rights Agreement with respect to its Shares. Upon any such approved assignment by the Subscriber, such assignee shall be deemed to be the “Subscriber” under this Agreement (and the Registration Rights Agreement) with respect to the rights and obligations under this Agreement (and the Registration Rights Agreement) transferred to such assignee; provided, that each Subscriber shall be severally, and not jointly, liable for any breach of this Agreement or the Registration Rights Agreement. Notwithstanding the foregoing, in the event that an assignee does not fulfill its purchase obligations hereunder, the original Subscriber shall be secondarily responsible for fulfilling such purchase obligations, and the original Subscriber shall (i) be permitted to enforce this Agreement against such assignee on behalf of the Company, (ii) receive such defaulting assignee’s rights under this Agreement (including its share of the Guarantee Escrow Shares), and (iii) be entitled to seek any remedies against the defaulting assignee for such default to which it or the Company may be entitled under this Agreement, such assignment, at law or in equity. | 7Assignments
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All information relating to or concerning the Company or any of its Subsidiaries set forth in this Agreement and provided to the Buyer pursuant to Section 2(d) hereof and otherwise in connection with the transactions contemplated hereby is true and correct in all material respects and the Company has not to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or exists with respect to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed (assuming for this purpose that the Company’s reports filed under the 1934 Act are being incorporated into an effective registration statement filed by the Company under the 1933 Act). | 31Disclosures
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This Agreement (including the documents and the instruments referred to herein), together with the Merger Agreement, the Parent Stockholder Agreement (as defined in the Merger Agreement) and the Existing Stockholders Agreement (as defined in the Parent Stockholder Agreement), constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. | 38Entire Agreements
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Except as otherwise set forth herein, capitalized terms used herein shall have the meanings assigned to them in the Purchase Agreement. | 28Defined Terms
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Neither this Agreement nor any other Loan Document may be amended, changed, waived, discharged or terminated, nor shall any consent or approval of Lender be granted hereunder, unless such amendment, change, waiver, discharge, termination, consent or approval is in writing signed by Lender. In addition, Lender shall not waive the requirement that the Closing Date GRC Certificate and the Closing Date WLT HOA Certificate be delivered on or prior to the making of the Loan. | 60Modifications
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This Agreement may be amended only by means of a written amendment signed by Parent and the Holders of a majority of the then outstanding Registrable Securities; provided , however, that no such amendment shall materially and adversely affect the rights of any Holder hereunder without the consent of such Holder. | 2Amendments
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