text
stringlengths 22
7.8k
| label
class label 100
classes |
|---|---|
All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile and e-mail communication) and delivered, to each party hereto, at its address set forth under its name on Schedule III hereto or at such other address as shall be designated by such party in a written notice to the other parties hereto. Notices and communications by facsimile or e-mail shall be effective when sent, and notices and communications sent by other means shall be effective when received. | 65Notices
|
This letter and the terms herein are open until March 31, 2017. Unless extended by mutual agreement in writing, if the Parties do not, despite acting in good faith, enter into an Acquisition Agreement by that date, this Letter shall terminate automatically. This Letter shall be governed by, and construed in accordance with, the laws of the State of Nevada, without giving effect to the principles of conflicts of laws thereof. This letter may be executed in counterparts, each of which shall be an original, but all such counterparts shall together constitute one and the same instrument. | 59Miscellaneous
|
This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof and deemed an original. | 26Counterparts
|
EACH PARTY HEREBY 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, THE RELATED AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF AND THEREOF. | 96Waiver Of Jury Trials
|
This Forbearance Agreement may be signed in counterparts by the parties hereto, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Delivery of an executed counterpart of this Forbearance Agreement by telecopier or electronic mail shall be equally effective as delivery of an original executed counterpart of this Forbearance Agreement. | 26Counterparts
|
To the extent permitted by applicable law, each Guarantor hereby waives promptness, diligence, protest, notice of acceptance and any other notice or formality of any kind with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Collateral Agent exhaust any right or take any action against any Transaction Party or any other Person or any Collateral. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 4 is knowingly made in contemplation of such benefits. The Guarantors hereby waive any right to revoke this Guaranty, and acknowledge that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future. Without limiting the foregoing, to the extent permitted by applicable law, each Guarantor hereby unconditionally and irrevocably waives (a) any defense arising by reason of any claim or defense based upon an election of remedies by the Collateral Agent or any Buyer that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Transaction Parties, any other guarantor or any other Person or any Collateral, and (b) any defense based on any right of set-off or counterclaim against or in respect of the Guaranteed Obligations of such Guarantor hereunder. Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Collateral Agent or any Buyer to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Transaction Party or any of its Subsidiaries now or hereafter known by the Collateral Agent or a Buyer. | 97Waivers
|
No modification of this Agreement shall be effective unless it is in writing duly signed by all of the Parties hereto. | 60Modifications
|
To the Knowledge of such Seller (a) there are no Required Consents which are required to be obtained, made, or complied with in connection with the transactions contemplated by this Agreement and (b) there are no preferential rights applicable to the transactions contemplated by this Agreement or the sale of the Asset Seller Assets or the Subject Securities by such Seller as contemplated by this Agreement. | 22Consents
|
This Amendment No. 2 shall be deemed to be effective and in full force and effect as of the date hereof. Except as expressly amended by this Amendment No. 2, all terms and provisions of the Registration Rights Agreement shall remain unchanged and in full force and effect without modification, and nothing herein shall operate as a waiver of any party’s rights, powers or privileges under the Registration Rights Agreement. | 34Effectiveness
|
All documents and records of the Company, including, without limitation, all financial records, vouchers, canceled checks, and bank statements, shall be delivered to the Liquidator upon termination of the Company. The Liquidator shall retain such documents and records for a period of not less than seven (7) years and shall make such documents and records available during normal business hours to any other Member for inspection and copying at such other Member’s cost and expense. | 73Records
|
Use the proceeds of all Loans to finance working capital needs, Permitted Acquisitions, capital expenditures and for other general corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulations T, U or X. All Letters of Credit will be used for general corporate purposes. | 92Use Of Proceeds
|
This Warrant and any provision hereof may only be modified or amended by an instrument in writing signed by the Company and the holder hereof. | 2Amendments
|
Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must actively participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed in the State of New York or a neutral retired judge of the state or federal judiciary of New York, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator's discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of New York and may grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the New York Civil Practice Law and Rules or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. | 70Powers
|
Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions or anti-corruption laws. | 78Sanctions
|
EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS‑COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY ANY LOANS OR EXTENSIONS OF CREDIT FROM AGENT AND LENDERS TO SUCH BORROWER UNDER THE CREDIT AGREEMENT OR THE OTHER DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDERS AND AGENT. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDERS, AGENT, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDERS AND AGENT, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY LOANS OR EXTENSIONS OF CREDIT FROM LENDERS AND AGENT TO SUCH BORROWER UNDER THE CREDIT AGREEMENT OR THE OTHER DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT. | 74Releases
|
Any notices required or permitted under this Agreement must be in writing and may be delivered personally or by mail, postage prepaid, addressed to (a) the Company at InnerWorkings, Inc., 600 West Chicago Avenue, Suite 850, Chicago, IL 60654, Attention: Corporate Secretary and (b) the Option Holder at the Option Holder’s address as shown on the Company’s payroll records, or to such other address as the Option Holder, by notice to the Company, may designate in writing from time to time. | 65Notices
|
The representations and warranties of the Buyer and the Company contained in Sections 3 and 4 , respectively, and the agreements and covenants set forth in Sections 5, 6 and 9 shall survive the Closing. | 85Survival
|
The Committee may at any time amend the Plan, including but not limited to modifying the terms and conditions applicable to (or otherwise eliminating) deferrals to be made on or after the Effective Date to the extent not prohibited by Code Section 409A; provided, however , that no amendment may reduce or eliminate any vested Account balance as of the date of such amendment (except as such Account balance may be reduced as a result of investment losses allocable to such Account) without a Participant’s consent except as otherwise specifically provided herein; and provided further that any amendment that is required to be approved by the Board or Company shareholders pursuant to any applicable law or applicable listing requirement of the national securities exchange upon which the Company’s ordinary shares are then traded shall be subject to the Board’s or shareholders’ approval. In addition, the Administrator may at any time amend the Plan to make administrative changes and changes necessary to comply with applicable law. | 2Amendments
|
The Company shall provide the same disability insurance coverage benefits to the Executive as provided to similarly situated executives of the Company. If, during his employment with the Company, the Executive receives Short-Term Disability Payments, then the Company shall pay the Executive the difference between the Short-Term Disability Payments and the portion of his then-current Annual Base Salary the Company would have paid him while receiving Short-Term Disability Payments. If the Executive is Disabled during his employment with the Company and otherwise entitled to receive salary and bonus payments under this Agreement, then any such salary and bonus payments (or such payments in lieu of salary and bonus payments) shall be reduced by the amount of any Short-Term Disability Payments received by the Executive for the period of short-term disability and any benefits paid for the same period under the Company-provided disability insurance coverage. | 30Disability
|
By and immediately upon the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank that is the issuer thereof or the Lenders, such Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely, irrevocably, and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute, irrevocable, and unconditional and shall not be affected by any circumstance whatsoever, including any amendment or extension of any Letter of Credit or the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. | 67Participations
|
Borrower is not in violation of any applicable statute, regulation or ordinance of the United States of America, any state, city, town, municipality, county, or any other jurisdiction, or any agency thereof, which is or could reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
|
All amounts due under this Section and Section 5.11 shall be payable promptly after written demand therefor. | 68Payments
|
The representations and warranties in Sections 2.1(a), (b), (c), and (d) and Sections 2.2(a), (b), (c), (d), and (e) will survive the Closing indefinitely. All other representations, warranties will survive for a period of two (2) years following the Closing Date. All covenants will survive (a) for the period of performance set forth in this Agreement for such covenant, or (b) if no such period of performance is provided, indefinitely following the Closing Date. The right to indemnification, payment of any losses or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. For the avoidance of doubt, any claim related to intentional or fraudulent breaches of the representations and warranties may be made at any time without limitation. | 85Survival
|
The Company will use the net proceeds from the sale of the Securities for general corporate purposes, including operating expenses, working capital to improve and promote its commercially available products, advance product candidates, expand international presence and commercialization and general capital expenditures. | 92Use Of Proceeds
|
Executive acknowledges that the provisions, restrictions and time limitations contained in Section 5 are reasonable and properly required for the adequate protection of the business of the Company and that in the event such restriction or limitation is deemed to be unreasonable by any court of competent jurisdiction, then Executive agrees to submit to the reduction of said restriction and limitation to such as any such court may deem reasonable. If any particular provision of Section 5 shall be adjudicated to be invalid or unenforceable, such provision shall be considered to be divisible with respect to scope, time and geographic area, and such lesser scope, time or geographic area, as a court of competent jurisdiction may determine to be reasonable, not arbitrary and not against public policy, shall be effective, binding and enforceable against Executive. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without said provision. | 79Severability
|
From and following the Closing Date, except as expressly set forth in this Agreement, Loans and the other Obligations shall bear interest at the sum of the LIBOR Rate plus the Applicable Margin. Interest on the Loans shall be paid in arrears on the first (1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise. Interest on all other Obligations shall be payable upon demand. | 54Interests
|
It is agreed that venue for any action arising in connection with this Agreement or the Obligations secured hereby shall lie exclusively with courts sitting in the State of Georgia, unless Lender otherwise agrees in writing. | 94Venues
|
Any dispute regarding the interpretation of this Agreement shall be submitted by the Director or the Company to the Committee (excluding the Director if he serves on the Committee) for review. The resolution of such dispute by the Committee shall be final and binding on the Director and the Company. | 55Interpretations
|
Except as set forth on Schedule 3.6 to the Disclosure Letter as of the Closing Date, and except as hereafter disclosed to Agent in writing, there is no Litigation pending against, or to such Borrower’s knowledge threatened in writing against any Credit Party or, to such Borrower’s knowledge, any party to any Operative Document other than a Credit Party that would reasonably be expected to result in a judgment against any Credit Party or any Subsidiary thereof for an amount in excess of $200,000. There is no Litigation pending that could reasonably be expected to have a Material Adverse Effect or which in any manner draws into question the validity of any of the Operative Documents. | 58Litigations
|
Notify the Administrative Agent at the time that any Person becomes a Restricted Subsidiary of a Loan Party and, within 30 days thereafter (or such later date as the Administrative Agent shall agree in its reasonable discretion), (i) unless such Person is an Excluded Subsidiary, the Borrower shall (A) cause such Person to become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and (B) to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent items of the types referred to for each of the initial Loan Parties pursuant to Sections 5.01(a) , 5.01(b) and 5.01(c) , all in form, content and scope reasonably satisfactory to the Administrative Agent and (ii) unless such Person is a Non‑Pledged Subsidiary, the Borrower shall cause the Capital Stock of such Person owned by the Loan Parties to be pledged to the Collateral Agent (for the benefit of the Lenders) as and to the extent required by Section 7.13 . | 46General
|
Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by bankruptcy, insolvency, receivership or similar law, as determined in good faith by the Administrative Agent, any Issuing Bank or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. | 79Severability
|
Any notice, request or other communication required or permitted to be given under this Control Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by facsimile transmission or other electronic means and electronic confirmation of error free receipt is received or two days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below. | 65Notices
|
All representations and warranties contained herein or made in writing by Borrower in connection herewith shall survive the execution and delivery of the Loan Documents. | 98Warranties
|
Any notice required to be given hereunder to the Company shall be in writing addressed to the Company, attention Senior Vice President, Chief Human Resources Officer, One CVS Drive, Woonsocket, RI 02895, and any notice required to be given hereunder to Participant shall be addressed to Participant at his address as shown on the records of the Company, subject to the right of either party hereafter to designate in writing to the other some other address. | 65Notices
|
For the avoidance of doubt, the Administrative Agent and the Lenders party hereto hereby waive (i) any non-compliance with Section 6.13(c) of the Credit Agreement (as in effect prior to the effectiveness of this Amendment) due to the Loan Parties and their Subsidiaries making Capital Expenditures during the 2015 Fiscal Year in excess of $17,000,000, (ii) any non-compliance with Section 2.11(c) and/or 2.11(e) of the Credit Agreement relating to the prepayment of Obligations in an aggregate amount equal to the Ratable Share of 100% of the Net Proceeds received in connection with the Specified Las Vegas Transaction, (iii) any incorrect representation or warranty made by the Loan Parties pursuant to Section 3.07 and/or 4.02 of the Credit Agreement (solely to the extent incorrect as a result of the events described in clauses (i) , (ii) and/or (iv) of this paragraph) and (iv) any non-compliance with Section 5.02(a) of the Credit Agreement as a result of any failure of the Loan Parties to provide timely notice of the foregoing. This specific waiver shall not be construed to constitute (1) a waiver of any other event, circumstance or condition or of any other right or remedy available to the Administrative Agent or any Lender pursuant to the Credit Agreement or any other Loan Document or (2) a course of dealing or a consent to any departure by the Borrowers or any other Loan Party from any other term or requirement of the Credit Agreement or any other Loan Document. | 97Waivers
|
This Agreement shall be binding upon Executive and on the Employer, its successors and assigns on the Effective Date, subject to the approval by the Boards of Directors of the Company and the Bank. The Employer will require any successor to all or substantially all of the business, stock or assets of the Employer to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement by the Employer. This Agreement shall be freely assignable by the Employer. | 13Binding Effects
|
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. SECTION 5.1 OF THE SERVICES AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT MUTATIS MUTANDIS AND SHALL APPLY HERETO. | 47Governing Laws
|
All payments will be made in lawful money of the United States of America at the principal office of the Company, or at such other place as the Holder may from time to time designate in writing to the Company or in Common Stock (at a fixed rate of $0.75 per share) at the Holder’s discretion (the “Put Right”). Payment will be credited first to accrued interest due and payable, with any remainder applied to principal. | 68Payments
|
To Buyer’s knowledge, (i) this Agreement does not violate any provision of any agreement or judicial order to which Buyer is a party or to which Buyer is subject and (ii) all documents to be executed by Buyer which are to be delivered at Closing will not, at the time of Closing, violate any provision of any agreement or judicial order to which Buyer is a party or to which Buyer is subject. | 61No Conflicts
|
The Plan contains provisions covering the treatment of Shares in a number of contingencies such as stock splits, mergers and Change of Control transactions. Provisions in the Plan for adjustment with respect to the Granted Shares and the related provisions with respect to successors to the business of the Company are hereby made applicable hereunder and are incorporated herein by reference. | 0Adjustments
|
Company and Sellers agree and acknowledges that Company’s business is unique and recognize and affirm that in the event of a breach of this Agreement by such Person, money damages may be inadequate and Buyer may have no adequate remedy at Law. Accordingly, Company and Sellers agree that Buyer shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and Company’s obligations hereunder not only by an action or actions for damages but also by an action or actions for equitable relief, including injunction and specific performance. If any such action is brought by Buyer to enforce this Agreement, Company and Sellers hereby waive the defense that there is an adequate remedy at Law or the requirement for the posting of any bond or similar security. | 81Specific Performance
|
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Agreement, or electronic mail transmission of a “.pdf” copy of this Agreement, bearing the signature of the party so delivering this Agreement. | 26Counterparts
|
Except as permitted by Section 8.01, each Obligor has good and indefeasible title to all properties owned by it, free and clear of all Liens, other than Permitted Liens. | 90Titles
|
In the event that an arbitrator or court of competent jurisdiction enters a final judgment or decision holding invalid any provision of this Agreement, the remainder of this Agreement shall be fully enforceable to the fullest extent permitted under law. Each clause of this Agreement is an independent agreement supported by adequate consideration and intended to be fully enforceable between and among the Parties to this Agreement. | 79Severability
|
This Agreement is a personal contract and the Employee may not sell, transfer, assign, pledge or hypothecate his rights, interests and obligations hereunder. Except as otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the benefit of the Employee and his personal representatives and shall inure to the benefit of and be binding upon the Company and its successors and assigns. | 7Assignments
|
If Grantee receives current benefits under the Corporation’s long‑term disability plan while any portion of this award remains unvested, the RSUs shall continue to vest and the restrictions on Disposition of the RSUs set forth in Section 2.1 of this Agreement shall lapse as provided in Section 3.1(a), subject to forfeiture based upon the risk adjustment process set forth on Attachment A. | 30Disability
|
If the Participant ceases to be employed by the Company for any reason or no reason, with or without cause, before the Units vest in full, all the Units that are unvested as of the time of such employment termination shall be immediately forfeited to the Company. | 44Forfeitures
|
This Agreement may not be altered, changed or amended, except by an instrument in writing signed by the parties. | 2Amendments
|
This Release Agreement may be executed by facsimile and in two (2) or more counterparts, each of which shall be deemed an original and all of which shall constitute one (1) instrument. | 26Counterparts
|
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 7.04 . Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. | 26Counterparts
|
VMRE may assign its rights under this Agreement in whole or in part at any time to any Affiliate without the consent of Carvana. With respect to any assignment of VMRE’s rights under this Agreement in whole, such Affiliate must have the ability to fulfill the terms of this Agreement and must expressly assume all rights and responsibilities of VMRE under this Agreement. Upon any unconditional assignment of VMRE’s entire right and interest hereunder and assumption by such Affiliate of VMRE’s rights and responsibilities under this Agreement, VMRE shall automatically be relieved, from and after the date of such assignment, from liability for the performance of VMRE’s obligations herein. Carvana shall not, without the prior written consent of VMRE, which consent may not be unreasonably withheld, sell, assign, transfer, mortgage, convey, encumber or grant any easements or other rights or interests of any kind in any Property, or any of Carvana’s rights under this Agreement, whether voluntarily, involuntarily or by operation of law or otherwise, including, without limitation, by merger, consolidation, dissolution or otherwise. In the event of any assignment or transfer of this agreement in whole or in part by VMRE as contemplated in this Section 10.5, references to VMRE in this Agreement shall include VMRE’s assignee or designee to the extent applicable. In the event of any assignment or transfer of this agreement in whole or in part by Carvana as contemplated in this Section 10.5, references to Carvana in this Agreement shall include Carvana’s assignee or designee to the extent applicable. | 7Assignments
|
Except to the extent the RSUs covered by this Agreement have become nonforfeitable pursuant to Section 4 or Section 5 hereof, the RSUs covered by this Agreement shall be forfeited automatically and without further notice, and shall no longer be considered covered by this Agreement, on the date on which Grantee ceases to be employed by the Company or any of its Subsidiaries, the Manager (including following a Re-Externalization pursuant to Section 1(b)(i) hereof) or any of its subsidiaries, the Third-Party Manager (following a Re-Externalization pursuant to Section 1(b)(ii) hereof) or any of its subsidiaries or any of their respective successors. For purposes of the preceding sentence, if Grantee commences employment with the Third-Party Manager on the date of a Re-Externalization pursuant to Section 1(b)(ii) hereof pursuant to an offer of employment made by the Third-Party Manager on or before the date of such Re-Externalization, Grantee’s termination of employment with the Company or any of its Subsidiaries on the date of such Re-Externalization shall not constitute a cessation of continuous employment for purposes of this Agreement. | 44Forfeitures
|
Borrowers will not use any proceeds of any Loan, directly or indirectly, for any purpose other than (a) on the Agreement Date, to pay transactional fees, costs and expenses incurred in connection with the Loan Documents, (b) on the Agreement Date, to refinance or pay off indebtedness for money borrowed prior to the Agreement Date, and (c) on the Agreement Date and thereafter, with respect to the Revolving Loans, for working capital in the ordinary course of Borrowers' business. Borrowers will not use any proceeds of any Loan, directly or indirectly, to purchase or carry margin stock, repay or otherwise refinance indebtedness incurred to purchase or carry Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock. None of the Borrowers, the other Credit Parties or any of their Subsidiaries have used or procured, nor shall they use or procure the proceeds of any Loan or other extension of credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person or Blocked Person, or in any Sanctioned Country or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto. The proceeds of Convertible Debt that, as of the Agreement Date, have not been expended by the Borrowers shall not be used for any purpose other than for working capital in the ordinary course of the Borrowers' business. | 92Use Of Proceeds
|
Within 30 days after the date hereof, your base salary shall be increased to $325,000 effective as of January 1, 2017. | 11Base Salary
|
Title to any and all New Amorphous Alloy Coating Technology shall vest solely and exclusively in LMCE, regardless of inventorship. Licensee hereby assigns to LMCE, and will cause its employees, contractors, representatives, successors, assigns, affiliates, parents, subsidiaries, officers and directors to assign to LMCE, all right, title and interest in and to any New Amorphous Alloy Coating Technology in which Licensee or any of them acquire rights. Licensee agrees to cooperate and cause its employees and contractors to cooperate in the preparation and prosecution of Patent applications relating to LMCE’s Intellectual Property, including any New Amorphous Alloy Coating Technology. Licensee agrees to cooperate with any written confidentiality or other protocols that Licensor or LMCE may from time to time implement in writing in order to maintain the patentability or secrecy (as determined by Licensor or LMCE) of any New Amorphous Alloy Coating Technology. | 7Assignments
|
The Company will indemnify Employee with respect to matters relating to his services as an officer and/or director of the Company, if applicable, to the extent set forth in the Company’s bylaws and in accordance with the terms of any other indemnification which is generally applicable to executive officers of the Company that may be provided by the Company from time to time. The Company will also cover Employee under a policy of officers’ and directors’ liability insurance that provides coverage that is comparable to that provided to any other executive officer or director of the Company, if applicable; provided the Company is not required to obtain or maintain such insurance if in the reasonable judgment of the Company’s Board such insurance cannot be obtained or maintained on reasonable terms. | 49Indemnifications
|
This Amendment may be signed in counterparts (by facsimile transmission or otherwise) but all of such counterparts together shall constitute one and the same instrument. | 26Counterparts
|
Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations. | 92Use Of Proceeds
|
The consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Holder and this Note has been duly and validly authorized, executed and delivered on behalf of Holder. Upon execution by Holder, this Note will be a legal, valid and binding obligation of Holder, enforceable against Holder in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability and except as rights of indemnity or contribution may be limited by federal or state securities or other laws or the public policy underlying such laws. | 37Enforcements
|
Grantor agrees to pay upon demand all of Lender's costs and expenses, including attorney's fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may pay someone else to help enforce this Agreement, and Grantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's Attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Grantor also shall pay all court costs and such additional fees as may be directed by the court. | 41Expenses
|
With respect to services provided by Will both prior to and after the effective date of this Agreement, the Company shall indemnify Will to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended or supplemented, or by any successor thereto, against all of the expenses, liabilities and other matters referred to in or covered by said Section. Expenses (including attorneys’ fees) incurred by Will in defending any civil, criminal, administrative, or investigative action, suit, or proceeding shall be paid by the Company in advance of the final disposition of such action, suit, or proceeding; provided, that Will hereby undertakes and agrees to repay all such amounts if it shall ultimately be determined that Will is not entitled to be indemnified by the Company as required hereby. | 49Indemnifications
|
The Company is a business company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each Subsidiary of the Company is a corporation or other entity duly formed, validly existing and, except as set forth in Schedule 4.1 , in good standing under the Laws of its jurisdiction of organization and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Except as set forth in Schedule 4.1 , each Target Company is duly qualified or licensed and in good standing in the jurisdiction in which it is incorporated or registered and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, or leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. Schedule 4.1 lists all jurisdictions in which any Target Company is qualified to conduct business and all names other than its legal name under which any Target Company does business. The Company has provided to the Purchaser accurate and complete copies of its Organizational Documents and the Organizational Documents of each of its Subsidiaries, each as amended to date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents. | 66Organizations
|
No failure on the part of the Senior Agent or any Senior Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other by further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. | 63No Waivers
|
Without limiting or qualifying Micron’s liabilities, obligations, or indemnities otherwise assumed by Micron pursuant to this Agreement, Micron shall maintain, at no charge to Intel, with companies acceptable to Intel: Commercial General Liability insurance with limits of liability not less than [***] Dollars ($ [***] ) per occurrence and including liability coverage for bodily injury or property damage (a) [***] and (b) arising out of [***] . Micron’s insurance shall be primary with respect to liabilities assumed by Micron in this Agreement to the extent such liabilities are the subject of Micron’s insurance, and any applicable insurance maintained by Intel shall be excess and non-contributing. The above coverage shall name Intel as additional insured as respects Micron’s work or services provided to or on behalf of Intel. | 51Insurances
|
It will not create, or participate in the creation of, or permit to exist, any Lien with respect to the Collection Account or any account into which collections on the Receivables are deposited, except as set forth in the Transaction Documents. | 57Liens
|
Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed. | 42Fees
|
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute the same instrument. | 26Counterparts
|
During the existence of a Default, the Collateral Agent may, and at the direction of the Required Lenders shall, exercise from time to time any rights and remedies available to it under the UCC or otherwise available to it. Without limiting the foregoing, during the existence of a Default, the Collateral Agent (a) may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any kind (except as set forth in the following sentence), (i) sell any Collateral, free of all rights and claims of any Pledgor therein, at any public or private sale or brokers’ board and (ii) bid for and purchase any Collateral at any such public sale and (b) shall have the right, for and in the name, place and stead of the applicable Pledgor, to execute endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to any Collateral. Each Pledgor hereby expressly waives, to the fullest extent permitted by applicable law, any and all notices, advertisements, hearings or processes of law in connection with the exercise by the Collateral Agent of any of its rights and remedies during the existence of a Default; provided that, unless the Collateral Agent determines that the applicable Collateral is declining speedily in value or is of a type that is customarily sold on a recognized market, the Collateral Agent shall give the applicable Pledgor at least ten days’ prior written notice of either the time and place of any public sale of any Collateral or of the time after which any private sale or other intended disposition of any Collateral is to be made (and each Pledgor agrees that notice so given shall be deemed to be reasonable and proper for all purposes). Any cash proceeds of any disposition by the Collateral Agent of any Collateral shall be applied by the Collateral Agent, pursuant to the terms of the Loan Agreement, to the payment of the Liabilities until paid in full, and any surplus will be paid to the applicable Pledgor or as a court of competent jurisdiction shall direct. | 75Remedies
|
This Guaranty embodies the entire agreement and understanding between Lender and Guarantor with respect to the subject matter hereof and supersedes all prior agreements and understandings between such parties relating to the subject matter hereof. Accordingly, this Guaranty may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. | 38Entire Agreements
|
Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Restated Credit Agreement, except that the defined terms “Lender”, “Term Lender” and “Required Lenders” shall have the meaning given such terms by the Existing Credit Agreement. | 28Defined Terms
|
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW. | 4Applicable Laws
|
Lender shall not be subject to any provision of the Lease that is inconsistent with this Agreement. Nothing contained in this Agreement shall be construed to derogate from or in any way impair or affect the lien or the provisions of the Mortgage. This Agreement shall be governed by and construed in accordance with the laws of the State of in which the Property is located. | 59Miscellaneous
|
Except as otherwise provided in Section 9, this Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws provisions. | 47Governing Laws
|
This Joinder Agreement is a Loan Document executed in connection with the Credit Agreement. Delivery of an executed counterpart of a signature page of this Joinder Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Joinder Agreement. | 59Miscellaneous
|
This Fourth Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. | 47Governing Laws
|
This Agreement, the Confidentiality Agreement, and the Stock Option Agreements shall represent the entire agreement of the parties with respect to the arrangements contemplated hereby. No prior agreement, whether written or oral, shall be construed to change, amend, alter, repeal or invalidate this Agreement. This Agreement may be amended only by a written instrument executed in one or more counterparts by the parties. | 38Entire Agreements
|
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AGREEMENT, THE REVOLVING NOTE AND EACH OF THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS. | 47Governing Laws
|
(a) Commitment Fee . The Borrower agrees to pay to each Lender a commitment fee on the average daily unused amount of such Lender’s Commitment (i) in the case of each Lender on the Effective Date, from the Effective Date or (ii) in the case of any Lender that becomes a Lender after the Effective Date, the effective date specified in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a Lender, until, in each case, the Termination Date (or, for the avoidance of doubt, the Term-Out Date), payable quarterly in arrears on the first Business Day of each January, April, July and October during the term of such Lender’s Commitment, commencing April 3, 2017, and on the Termination Date, at the rate per annum equal to the Commitment Fee Percentage in effect from time to time. | 42Fees
|
You agree that through September 30, 2018 or as long as you continue to receive Salary and Wage Continuation payments under this Agreement, whichever occurs first, you will respond in a timely and helpful manner via telephone or email to CSI’s questions regarding your employment with CSI, such as, but not limited to, status of projects, customer matters, location of data, passwords, etc. | 24Cooperation
|
No broker, investment banker, financial advisor or other Person is entitled to any brokerage, finders’, advisory or similar fee in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Principal Holder. | 15Brokers
|
Employee agrees that he shall continue to serve the Company as Chief Financial Officer until the Employment Termination Date (as defined below) or such earlier time as the Board of Directors determines. Prior to the Employment Termination Date and during the period from the date hereof through and including the Employment Termination Date, Employee shall serve as the Chief Financial Officer and during such time shall be responsible for such duties and responsibilities as are commensurate with such position, including, without limitation, the duties and responsibilities as the Board of Directors and Chief Executive Officer may from time to time reasonably assign to Employee. Employee shall devote substantially all of his working time and efforts during the Company’s normal business hours to the business and affairs of the Company and its subsidiaries and to the diligent and faithful performance of the duties and responsibilities duly assigned to him pursuant to this Agreement. Employee will be deemed to be in breach of this Agreement and subject to termination for Cause (as defined herein), and Employee will receive no benefits and be terminated without further payments or benefits beyond the date of termination pursuant to the express provisions of this Agreement, in the event of material failure to perform the duties and responsibilities as set forth herein. The failure by the Employee to certify to the Company’s Form 10-K, as defined below under Section 302 of the Sarbanes-Oxley Act of 2002 (the “SOX Certification”). | 32Duties
|
The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any material property or assets to, or purchase, lease or otherwise acquire any material property or assets from, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than those that would reasonably be expected to be obtained in a comparable arm’s-length transaction with an unrelated third party, and (b) transactions between or among the Borrower and its wholly-owned Subsidiaries which do not involve any other Affiliate. | 91Transactions With Affiliates
|
All payments shall be made in lawful money of the United States of America at such place as the Holder hereof may from time to time designate in writing to the Borrower. Prepayment of this Note may be made at any time without penalty. | 68Payments
|
On Kimball’s first regular payroll date following the Termination Date, Kimball will pay Executive’s full base salary earned through the Termination Date at the rate in effect on the date Notice of Termination is given. | 11Base Salary
|
Upon any Change in Control prior to December 31, 2019, the amount of cash that shall be paid in settlement of this Award shall be equal to the greater of (i) the Base Cash Amount (as set forth in the Notice of Grant) or (ii) such Base Cash Amount multiplied by the 2019 Revenue Performance Multiplier, multiplied by the TSR Performance Multiplier, rounding up to the nearest whole dollar. | 17Change In Control
|
This Amendment may be executed in any number of counterparts, each of which will be considered to be an original, and all such executed counterparts will together constitute one document. The provisions of this Amendment are severable, and if any one or more provisions are determined to be judicially unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable. No amendment or modification of this Amendment or waiver of the terms and conditions hereof shall be binding unless approved in writing by each of the parties hereto. Except to the extent governed by the Employee Retirement Income Security Act of 1974, as amended, this Amendment shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflict of laws provisions. | 59Miscellaneous
|
If any term or other provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner to the end that the transactions contemplated hereby are consummated as originally contemplated to the fullest extent possible. | 79Severability
|
The Participant is responsible for payment or satisfaction of any federal, state, local and other taxes which must be paid or withheld in connection with this Award and the vesting of Shares hereunder, and no certificate representing the Shares of Restricted Stock may be released from the escrow established pursuant to Section 2, unless and until such satisfactory arrangements shall have been made. The Company and its subsidiaries are authorized to deduct from any payment owed to Participant any taxes required to be withheld with respect to the grant and/or vesting of the Shares in an amount equal to the maximum statutory rate for each applicable jurisdiction. If the Participant is subject to Section 16 of the Exchange Act at the time the tax withholding obligation becomes due, the Administrator will satisfy any tax withholding obligation by directing the Company to withhold a number of whole Shares from those that Participant would otherwise have received upon the vesting of the Award having a Fair Market Value (determined as of the date on which the withholding obligation arises) equal to the maximum statutory tax withholding rate for each applicable jurisdiction (with any shortfall in withholding due to fractional shares to be paid in cash by Participant), unless otherwise agreed by the Administrator and the Participant. If the Participant is not subject to Section 16 of the Exchange Act at the time the tax withholding obligation becomes due, the Administrator may decide in its sole discretion, at the time such tax withholding obligation arises, to allow the Participant to satisfy any tax withholding obligation by directing the Company to withhold a number of whole Shares from those that Participant would otherwise have received upon the vesting of the Award having a Fair Market Value (determined as of the date on which the withholding obligation arises) equal to the maximum statutory tax withholding rate for each applicable jurisdiction (with any shortfall in withholding due to fractional shares to be paid in cash by Participant), unless otherwise agreed by the Administrator and the Participant . | 86Tax Withholdings
|
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 8.19 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by the bankruptcy code of the United States or any comparable bankruptcy, insolvency, receivership, reorganization or other debtor relief laws, as determined in good faith by the Administrative Agent, any L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. | 79Severability
|
The Borrower will not, and will not permit any Restricted Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) (A) (x) transactions between or among the Borrower or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction and (y) any merger; amalgamation or consolidation with any direct or indirect parent of the Borrower; provided that such parent entity shall have no material liabilities and no material assets other than cash, Permitted Investments and the Equity Interests of the Borrower and such merger, amalgamation or consolidation is otherwise consummated in compliance with this Agreement and (B) transactions involving aggregate payment or consideration of less than $75,000,000, (ii) on terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by such Person at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (iii) the payment of fees and expenses related to the Transactions, (iv) the payment of management, consulting, advisory and monitoring fees to the Investors (or management companies of the Investors) in an aggregate amount in any fiscal year not to exceed 2.5 % of Consolidated EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01 (a ) or (b ) , (v) issuances of Equity Interests of the Borrower to the extent otherwise permitted by this Agreement, (vi) employment and severance arrangements between the Borrower and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business or otherwise in connection with the Transactions (including loans and advances pursuant to Sections 7.04(b) and 7 .04(n) , (vii) payments by the Borrower and its Restricted Subsidiaries pursuant to tax sharing agreements among the Borrower (and any such parent thereof) and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, to the extent such payments are permitted by Section 7.07 , (viii) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the Board of Directors, officers and employees of the Borrower (or any direct or indirect parent thereof) and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, (ix) transactions pursuant to permitted agreements in existence or contemplated on the Closing Date and set forth on Schedule 6.17 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (x) [reserved], (xi) payments to or from, and transactions with, any joint venture in the ordinary course of business (including, without limitation, any cash management activities related thereto), (xii) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business and which are fair to the Borrower and the Restricted Subsidiaries, in the reasonable determination of the Borrower, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, (xiii) sales of accounts receivable, or participations therein, or Securitization Assets or related assets in connection with or any Qualified Securitization Facility, (xiv) payments made in connection with the Transactions, (xv) customary payments by the Borrower and any Restricted Subsidiaries to the Investors made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions, divestitures or financings), which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of the Borrower and any other Restricted Subsidiary in good faith and (xvi) any other (A) Indebtedness permitted under Section 7.01 and Liens permitted under Section 7.02 ; provided that such Indebtedness and Liens are on terms which are fair and reasonable to the Borrower and its Subsidiaries as determined by the majority of disinterested members of the board of directors of the Borrower and (B) transactions permitted under Section 7.04 , Investments permitted under Section 7.03 and Restricted Payments permitted under Section 7.07 . | 91Transactions With Affiliates
|
The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile or other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Houston, Texas time, three Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Houston, Texas time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.06(b) , then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.06(b) . Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02 . Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 3.02 and any amounts due under Section 5.02 . | 65Notices
|
Whenever possible each provision and term of this Amendment will be interpreted in a manner to be effective and valid. If any term or provision of this Amendment or the application of any such term or provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions hereof, or the application of such term or provision to Persons or circumstances other than those as to which it has been held invalid, illegal or unenforceable, will remain in full force and effect and will in no way be affected, impaired or invalidated thereby. If any term or provision of this Amendment is held to be prohibited or invalid, then such term or provision will be ineffective only to the extent of such prohibition or invalidity without invalidating or affecting in any manner whatsoever the remainder of such term or provision or the other terms and provisions of this Amendment. Upon determination that any other term or provision of this Amendment is invalid, void, illegal, or unenforceable, a court of competent jurisdiction will modify such term or provision so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible under the Law. | 79Severability
|
As consideration for the commitments and agreements of the Commitment Parties hereunder, the Company agrees to pay the fees described in the Term Sheet and the Fee Letters on the Closing Date on the terms and subject to the conditions set forth therein. The terms of the Fee Letters are an integral part of each Commitment Party’s commitment and other obligations hereunder. Each of the fees described herein and in the Fee Letters shall be nonrefundable when paid. All fees payable hereunder and under the Fee Letters will be paid in immediately available funds. The obligation to pay any fee provided for herein or therein or to cause any such fee to be paid will be joint and several with any other party having such an obligations, shall be absolute and unconditional and shall not be subject to reduction by way of setoff or counterclaim. | 42Fees
|
At any time and from time to time each Loan Party shall execute and deliver such further instruments and take such further action as may reasonably be requested by Lender to effect the purposes of this Agreement. | 45Further Assurances
|
Neither the execution and delivery of this Agreement by such Stockholder, nor the performance by such Stockholder of its obligations under this Agreement, will (i) conflict with or violate any provision of the organizational documents of such Stockholder or (ii) (A) violate any Law applicable to such Stockholder or any of its properties or assets, (B) result in the creation by such Stockholder of any Lien upon its shares of Company Class B Common Stock or LLC Units or (C) violate, conflict with, result in the loss of any material benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, or accelerate the performance required by such Stockholder under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, permit, lease, agreement or other instrument or obligation to which such Stockholder is a party, or by which such Stockholder or any of its properties or assets may be bound or affected, except for, in the case of clause (ii)(C) , any such violations, conflicts, losses, defaults, terminations, cancellations or accelerations that would not reasonably be expected to prevent the performance by such Stockholder of its obligations under this Agreement. | 61No Conflicts
|
Rates and Payment Dates . (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin. | 54Interests
|
This Agreement shall be deemed to have been executed and delivered within the State of Washington, and, except for Section 11, which shall be governed by the Federal Arbitration Act (both substantively and procedurally), the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of Washington without regard to principles of conflict of laws. The parties agree that Executive’s job duties as the Company’s Executive Vice President, Chief Business Officer affected goods and services involved in interstate commerce. | 47Governing Laws
|
All notices and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made by telecopy or other writing and telecopied, mailed or delivered to the intended recipient (a) in the case of each of the Borrowers, the Administrative Agent, the Multi-Currency Payment Agent or the Canadian Administrative Agent at the “Address for Notices” specified below its name on the signature pages hereof; (b) in the case of any Lender, at its address (or telecopy number) set forth in its Administrative Questionnaire; or, as to any party, at such other address as shall be designated by such party in a notice to the each of the Borrowers and the Administrative Agent given in accordance with this Section 12.02. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telecopier (and receipt is electronically confirmed), personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid. In addition, such notices and other communications may be delivered or furnished by electric communications pursuant to procedures approved by the Administrative Agent. | 65Notices
|
The provisions of Clause 32.2 (Consent to Jurisdiction) of the Loan Agreement shall apply to this Fourth Amendatory Agreement as if set out in full but so that references to “this Agreement” are amended to read “this Fourth Amendatory Agreement”. | 21Consent To Jurisdiction
|
The Company agrees to pay the Executive a base salary (the “ Base Salary ”) at an annual rate of not less than $375,000, payable in accordance with the regular payroll practices of the Company, but not less frequently than monthly. The Executive’s Base Salary shall be subject to annual review by the Board (or a committee thereof). | 11Base Salary
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.