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Each Pledgor hereby waives, to the extent permitted by Applicable Law, all rights of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any Applicable Law in order to prevent or delay the enforcement of this Pledge Agreement or the absolute sale of the Collateral or any portion thereof. Each Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the fees and disbursements of any attorneys employed by the Administrative Agent or any Secured Party to collect such deficiency. | 97Waivers
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Mr. Vice agrees that, for at least sixty (60) months following the Retirement Date, he will reasonably cooperate with Company and any Released Party regarding requests for assistance by providing support in connection with claims, litigation and investigations, including without limitation serving as a witness and/or providing information about matters connected with Mr. Vice’s prior employment with the Company or any Released Party; provided, however, that any such cooperation in excess of 40 hours per year shall be subject to mutually agreeable reasonable compensation. The Company or the Released Party requesting assistance shall reimburse Mr. Vice for any travel costs he incurs in connection with his cooperation, in accordance with its travel cost reimbursement policy for active appointed officers. | 24Cooperation
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With respect to any portion of a Receivable attributable to governmental fees, surcharges or taxes, the Servicer shall pay (or cause to be paid) such governmental fees, surcharges or taxes to the applicable Governmental Authority when due in accordance with Applicable Law (except for any such governmental fees, surcharges or taxes that (x) are being appropriately contested in good faith by appropriate proceedings and with respect to which adequate reserves in conformity with GAAP have been provided or (y) are not, individually or in the aggregate, material in amount or scope and are promptly paid following notice from a Governmental Authority), and none of the Collateral Agent, any Administrative Agent, any Purchaser Agent or any Purchaser shall have any obligation to make any such payment or shall have any other responsibility with respect thereto. The Servicer’s obligations under this clause (n) are joint and several with the obligations of the Sellers under Section 7.1(r) . | 87Taxes
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The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption and Administrative Questionnaire, all documentation and other information reasonably determined by the Agent to be required by applicable regulatory authorities required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and a processing and recordation fee of $3,500, provided , however, that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and such processing and recordation fee shall be waived for assignments to an Affiliate of a Lender or an Approved Fund. | 7Assignments
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The execution, delivery and performance of this Agreement and the Ancillary Agreements to which it is a party by ImmunoGen have been duly and validly authorized by all necessary corporate action on behalf of ImmunoGen. This Agreement has been duly executed and delivered by ImmunoGen and constitutes the valid and binding obligation of ImmunoGen, enforceable in accordance with its terms, subject to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. Each Ancillary Agreement to which ImmunoGen is a party, when executed and delivered by ImmunoGen, will constitute the valid and binding obligation of ImmunoGen, enforceable against ImmunoGen in accordance with its terms, subject to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. | 9Authority
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The consummation of the transactions contemplated hereby with respect to the Properties and Lease Interests, as applicable (the “ Closing ”) shall occur through customary escrow arrangements with the Escrow Agent. | 18Closings
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In the event that the Closing shall not have occurred with respect to a Buyer on or before five (5) Business Days from the date hereof due to the Company's or such Buyer's failure to satisfy the conditions set forth in Sections 6 and 7 above (and the nonbreaching party's failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date by delivering a written notice to that effect to each other party to this Agreement and without liability of any party to any other party; provided , however , that if this Agreement is terminated pursuant to this Section 8, the Company shall remain obligated to reimburse the Lead Investor or its designee(s), as applicable, for the expenses described in Section 4(f) above. | 88Terminations
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Of Jury Trial . EACH OF HOLDINGS, THE BORROWERS, THE GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. | 97Waivers
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Borrower has full authority to enter into the Loan Documents and carry out all terms thereof and all required approvals or consents of the directors of the Borrower and all other necessary Persons have been obtained. | 9Authority
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No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Sellers. | 15Brokers
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At the commencement and at the expiration of the Term, all Taxes and Other Charges shall be prorated. Landlord shall promptly forward to Tenant copies of all bills and payment receipts for Taxes or Other Charges received by it. Tenant shall pay and discharge (including the filing of all required returns), prior to delinquency or imposition of any fine, penalty, interest or other cost (“ Penalty ”), (a) “ Taxes ”, consisting of any real property and other taxes and assessments levied or assessed with respect to the Premises (excluding income taxes, franchise taxes, estate taxes, transfer taxes and/or gross receipts taxes that may be imposed upon Landlord), and (b) “ Other Charges ”, consisting of any utilities and other costs and expenses of the Facility or any portion of the Premises and all other charges, obligations or deposits assessed against any portion of the Premises during the Term. Tenant shall pay the foregoing when due and before any Penalty, but may pay the foregoing in permitted installments (whether or not interest accrues on the unpaid balance). Within ten (10) days of its receipt of Landlord’s written notice of payment, Tenant shall pay Landlord an amount equal to any Taxes or Penalty that Landlord at any time is assessed or otherwise becomes responsible and for which Tenant is liable under this Lease. However, nothing in this Lease shall obligate Tenant to pay penalties incurred as a result of Landlord’s failure to timely forward bills to Tenant. | 87Taxes
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This Commitment Letter amends and restates in its entirety that certain amended and restated commitment letter dated as of January 18, 2017 (as in effect immediately prior to effectiveness of this Commitment Letter, the “ Amended and Restated Commitment Letter ”), which Amended and Restated Commitment Letter amended and restated that certain commitment letter dated as of December 19, 2016 (as amended by that certain joinder letter dated as of December 23, 2016, and as in effect immediately prior to effectiveness of the Amended and Restated Commitment Letter, the “ Original Commitment Letter ”) among the Commitment Parties (or their applicable affiliates) and the Company. | 2Amendments
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No notices are required to be delivered to, and no approvals and consents are required to be obtained from, the board of directors (or similar governing body, as applicable) or stockholders or equity holders of such Purchaser under: (i) Applicable Law; (ii) the organizational documents of such Purchaser; or (iii) any Contract to which such Purchaser is a party in connection with the execution and delivery by it of this Agreement and the other Transaction Documents to which it is or shall become a party and the consummation of the transactions contemplated herein and therein. | 5Approvals
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This Agreement embodies the complete agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes or incorporates all prior or contemporaneous understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. | 38Entire Agreements
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Subject to your rights contained in Section 5(d), you agree not to directly or indirectly take any actions or make any statements that criticize, ridicule, disparage or are otherwise derogatory to the Company or any of the Releasees (as defined in Section 4) or any of their respective products or services, financial status or businesses, or that damage or is intended to damage the Company or any of the Releasees in any of their respective business relationships, or encourage the making of such statements or the taking of such actions by someone else. In addition, subject to your rights contained in Section 5(d), you agree not discuss, provide interviews or otherwise publicly make any statements about the Company or your experiences at the Company without the prior written consent of the Company. | 64Non-Disparagement
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This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Texas, without reference to the principles of conflicts of law of Texas or any other jurisdiction, and where applicable, the laws of the United States. | 47Governing Laws
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Any controversy or claim arising out of or relating to this Agreement or the breach of the same, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. All arbitration expenses shall be borne equally by the Advisor, on the one hand, and the Client and any affected Affiliated Company, on the other hand. Any arbitration proceeding arising under this Agreement will be conducted in the County of New York in the State of New York or such other location as the parties mutually agree. | 6Arbitration
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If any provision of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of this Agreement, valid and enforceable. | 79Severability
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Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Transaction Documents. | 29Definitions
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This First Amendment is executed by Enphase to acknowledge, agree and consent to the amendments made pursuant hereto, and to acknowledge that the security interests and liens granted by Enphase to Flex under the Security Agreements will continue to secure all Obligations. | 22Consents
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The term of this Agreement (the “ Storage Term ”) shall commence on the Commencement Date and end on the later of the Termination Date or the last day on which any Materials are held by Macquarie Group in any of the Storage Facilities. | 89Terms
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This Agreement may be executed in any number of counterparts (including facsimile counterparts), all of which together shall constitute a single instrument. Delivery of a copy of this Agreement bearing an original signature by facsimile transmission or by electronic mail shall have the same effect as physical delivery of the paper document bearing the original signature. | 26Counterparts
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The issuance and transfer of shares of Common Stock in connection with the Performance Shares shall be subject to compliance by the Company and the Participant with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel. | 19Compliance With Laws
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The termination of this Agreement shall not affect any Credit Party’s, Agent’s or any Lender’s rights, or any of the Obligations having their inception prior to the effective date of such termination, and the provisions hereof shall continue to be fully operative until all transactions entered into, rights or interests created or Obligations (other than contingent indemnity claims not yet asserted or threatened) have been fully and indefeasibly paid, disposed of, concluded or liquidated. The security interests, Liens and rights granted to Agent for the benefit of the Secured Parties hereunder and the financing statements filed in connection therewith shall continue in full force and effect, notwithstanding the termination of this Agreement, until the Termination Date. Upon the occurrence of the Termination Date or any release of Collateral or any part thereof in accordance with the provisions of this Agreement, then the Collateral (or such part of the Collateral) shall be released from the security interests created by this Agreement and Agent shall, upon the written request and at the sole cost and expense of the Borrowers and receipt by Agent of a certificate from an Authorized Officer of the Borrowing Agent confirming that such release (other than in connection with the occurrence of the Termination Date) is permitted under this Agreement and each Other Document, assign, transfer and deliver to Credit Parties, without recourse to or representation or warranty, express or otherwise, by Agent, such of the Collateral or any part thereof as may be in possession of and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Collateral, proper documents and instruments (including UCC-3 termination financing statements or releases) acknowledging the termination of the Liens granted pursuant to this Agreement, each as provided to Agent. All representations, warranties, covenants, waivers and agreements contained herein shall survive termination hereof until all Obligations (other than contingent indemnity claims not yet asserted or threatened) are indefeasibly paid and performed in full. | 88Terminations
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Each of Parent and the Borrower will, and will cause each Loan Party to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property in all material respects. Each of Parent and the Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Loan Parties and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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This Guaranty may not be amended except in writing signed by the Administrative Agent and each Guarantor, subject to Section 12.7. of the Credit Agreement. | 2Amendments
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Subject to all applicable laws, rules and regulations, the Committee shall have the power to amend this Agreement at any time provided that such amendment does not adversely affect, in any material respect, the Participant’s rights under this Agreement without the Participant’s consent. Notwithstanding the foregoing, the Company shall have broad authority to alter or amend this Agreement and the terms and conditions applicable to PSUs without the consent of the Participant to the extent it deems necessary or desirable in its sole discretion (i) to comply with or take into account changes in, or rescissions or interpretations of, applicable tax laws, securities laws, employment laws, accounting rules or standards and other applicable laws, rules, regulations, guidance, ruling, judicial decision or legal requirement, (ii) to ensure that the Earned PSUs are not subject to taxes, interest and penalties under Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), (iii) to take into account unusual or nonrecurring events or market conditions, or (iv) in any other manner set forth in Section 16 of the Plan. Any amendment, modification or termination shall, upon adoption, become and be binding on all persons affected thereby without requirement for consent or other action with respect thereto by any such person. The Committee shall give written notice to the Participant in accordance with Section 13(a) of any such amendment, modification or termination as promptly as practicable after the adoption thereof. The foregoing shall not restrict the ability of the Participant and the Company by mutual consent to alter or amend the terms of the PSUs in any manner that is consistent with the Plan and approved by the Committee. | 2Amendments
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All federal, state and other material tax returns of the Parent, the Borrower, each other Loan Party and each other Subsidiary required by Applicable Law to be filed have been duly filed (taking into account any extensions of time within which to file such returns), and all federal, state and other material taxes, assessments and other governmental charges or levies upon, each Loan Party, each other Subsidiary and their respective properties, income, profits and assets which are due and payable have been paid, except any such nonpayment or non-filing which is at the time permitted under Section 8.6. As of the Agreement Date, none of the United States income tax returns of the Parent, the Borrower, any other Loan Party or any other Subsidiary is under audit. All material charges, accruals and reserves on the books of the Borrower, the other Loan Parties and the other Subsidiaries in respect of any taxes or other governmental charges are in accordance with GAAP. | 87Taxes
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Immediately upon the issuance of any Letter of Credit, the applicable Issuing Bank shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under such Issuing Bank), an undivided interest and participation, pro rata (based on its Applicable Percentage), in such Letter of Credit, each drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect thereto and any Collateral or other security therefor or guaranty pertaining thereto; provided , however , that the fee relating to Letters of Credit described in Section 2.9(b)(ii) shall be payable directly to such Issuing Bank as provided therein, and the other Lenders shall have no right to receive any portion thereof. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, on the Lender L/C Obligation Payment Date, such Lender’s Applicable Percentage of each Reimbursement Obligation (plus interest thereon) not reimbursed by the applicable Borrower on the applicable Reimbursement Obligation Repayment Date as provided in Section 3.4 or through the Borrowing of Revolving Loans as provided in Section 3.5 (because the conditions set forth in Section 4.2 cannot be satisfied, or for any other reason), or of any reimbursement payment required to be refunded to such Borrower for any reason. Upon any change in the Commitments of any of the Lenders pursuant to Section 2.21 or 11.6(a) , with respect to all outstanding Letters of Credit and Reimbursement Obligations there shall be an automatic adjustment to the participations pursuant to this Section 3.3 to reflect the new Applicable Percentages of the Lenders. Each Lender’s obligation to make payment to an Issuing Bank pursuant to this Section 3.3 shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including the termination of the Commitments or the existence of any Default or Event of Default, and each such payment shall be made without any offset, abatement, reduction or withholding whatsoever. | 67Participations
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The Company hereby represents and warrants to the undersigned that the Company’s representations and warranties as set forth in Section 3.1 and the Company’s covenants as set forth in Article IV of the Securities Purchase Agreement, dated as of March 17, 2017 (the “ Purchase Agreement ”), between the Company and the signatories thereto, together with any Disclosure Schedules, are true and correct as of the date hereof and have been fully performed as of the date hereof. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement. | 98Warranties
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This Agreement shall be exclusively governed by and interpreted under the laws of the State of Washington. | 47Governing Laws
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An election by the Employee to resign for Good Reason under the provisions of this Agreement shall not be deemed a voluntary termination of employment by the Employee for the purpose of interpreting the provisions of any of the Company’s benefit plans, programs or policies. Nothing in this Agreement shall be construed to limit the rights of the Employee under the Company’s benefit plans, programs or policies except as otherwise provided in Section 6 hereof, and except that the Employee shall have no rights to any other severance benefits under any Company severance pay plan, offer letter or otherwise. In the event that the Employee is party to an agreement with the Company providing for payments or benefits under such agreement and this Agreement, the terms of this Agreement (subject to the equity provisions in Section 13 above) shall govern and Employee may receive payment under this Agreement only and not both. Further, Section 4 and Section 5 of this Agreement are mutually exclusive and in no event shall Employee be entitled to payments or benefits pursuant to Section 4 and Section 5 of this Agreement. | 1Agreements
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Either Party may immediately terminate this Agreement and the licenses granted hereunder if the other Party (i) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement, (ii) files a petition in bankruptcy, (iii) is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of forty-five (45) days, or (iv) materially breaches its obligations of confidentiality hereunder. | 20Confidentiality
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This Amendment may be executed in counterparts any of which will be deemed an original, but all of which together will constitute one and the same agreement. | 26Counterparts
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Make any voluntary or optional payment, prepayment or repayment on, redemption, exchange or acquisition for value of, or any sinking fund or any other payment with respect to, any Subordinated Indebtedness, except as permitted by the subordination provisions in the applicable Subordinated Debt Documents and any subordination agreement with respect thereto in favor of the Administrative Agent and the Lenders; provided that no payments of principal, interest, fees or other amounts shall be made in respect of the Ribbon Shareholder Indebtedness, other than non-cash paid-in-kind interest. | 68Payments
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The balance of a Participant's Account shall become 100% vested at the same time as if the amounts had been credited as RC Feature contributions to the Participant's Account under the 401(k) Plan. Notwithstanding the foregoing, the previously unforfeited balance of a Participant's Account shall also become 100% vested upon a Change of Control. | 95Vesting
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The Parties agree to consult with each other reasonably and in good faith with respect to the text and timing of any press releases relating to this Agreement or the activities hereunder prior to the issuance thereof; provided , that a Party may not unreasonably withhold consent to such releases, and either Party may issue such press releases as it determines, based on the advice of counsel, are reasonably necessary to comply with Applicable Laws or for appropriate market disclosure or which are consistent with information disclosed in prior releases properly made hereunder. | 71Publicity
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Except for the security interests granted to the Note Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and Permitted Liens, the Company owns each item of the Collateral free and clear of any and all Liens securing Indebtedness. To the knowledge of the Company after due inquiry, no currently effective financing statement or other similar public notice with respect to any Lien securing Indebtedness on all or any part of the Collateral is on file or of record in any public office in the United States of America, any state, territory or dependency thereof or the District of Columbia, except, in each case, such as have been filed in favor of the Note Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement [or other than as listed on Schedule 2 hereto]. | 90Titles
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Tenant’s Share with respect to the Additional Premises shall be 36.89%. | 87Taxes
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During the Employment Term or thereafter as specified herein, Employee agrees that he shall not divulge to others, nor shall he use to the detriment of the Company or in any business or process of manufacture competitive with or similar to any business or process of manufacture engaged in by the Company, or any subsidiary or affiliated company, any Confidential Information (as defined below in Section 7.2 ) obtained by him during the course of his employment with the Company relating to sales, salesmen, sales volume or strategy, customers, formulas, processes, methods, machines, manufactures, compositions, ideas, improvements or inventions belonging to or relating to the business of the Company, or its subsidiary or affiliated company. | 20Confidentiality
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Neither Party hereto may assign any of his respective duties or obligations under this Agreement without the express written consent of the other Party; except that Buyer may, without the consent of Seller but after providing notice to Seller, assign any of its rights and delegate any of its obligations under this Agreement to any entity that is an Affiliate of Buyer, or to any subsequent acquirer of all or substantially all of the assets of Buyer and may assign any of its rights under this Agreement as collateral security for any lender providing financing to Buyer. Subject to the foregoing, this Agreement shall inure to the benefit of and shall be binding upon the respective successors and assigns. Nothing in this Agreement is intended to confer, expressly or by implication, upon any other Person any right or remedy under or by reason of this Agreement. | 7Assignments
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(a) Each of the Whiting Parties, jointly and severally, agree to indemnify and hold harmless each Initial Purchaser and each Holder, their respective affiliates (as such term is defined in Rule 501(b) under the Securities Act), directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus used in violation of this Agreement or any “issuer information” (“ Issuer Information ”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Company in writing through J.P. Morgan or any selling Holder, respectively, expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Whiting Parties, jointly and severally, will also indemnify the Underwriters, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information. | 49Indemnifications
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This Agreement sets forth the entire agreement between Employee and the Company, other than the employment agreement signed by Employee at the time of hire, the Letter Agreement, and any supplemental release required thereunder and fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter of this Agreement other than the Letter Agreement. By countersigning this Agreement Employee acknowledges that in doing so he have not relied upon any representation or statement not set forth in this Agreement made by myself or any other representative of the Company, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than in the Letter Agreement. | 38Entire Agreements
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Each party’s obligations under this Section shall survive the resignation of any of the Administrative Agent, any Arranger, the Issuing Lender and the Swingline Lender, the replacement of any Lender, the termination of the Loan Documents, the termination of the Revolving Commitments and the Discharge of Obligations. | 85Survival
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The execution, delivery and performance of this Agreement and the consummation by such Subscriber of the transactions contemplated hereby or relating hereto do not and will not (i) result in a violation of such Subscriber’s charter documents, bylaws or other organizational documents, if applicable; (ii) conflict with nor constitute a default (or an event which with notice or lapse of time or both would become a default) under any agreement to which such Subscriber is a party; or (iii) result in a violation of any law, rule or regulation, or any order, judgment or decree of any court or governmental agency applicable to such Subscriber or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a Material Adverse Effect on Subscriber). Such Subscriber is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for such Subscriber to execute, deliver or perform any of such Subscriber’s obligations under this Agreement, nor to purchase the Securities in accordance with the terms hereof, provided that for purposes of the representation made in this sentence, such Subscriber is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein. | 61No Conflicts
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Any notice to be given under the terms of this Option Agreement to the Company shall be addressed to the Company in care of its Secretary. Any notice to be given to you shall be addressed to you at the e-mail address or street address listed in the Company’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall have been deemed given when actually delivered. | 65Notices
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Unclaimed amounts shall consist of the amount of the Account of a Participant that cannot be distributed because of the Officer Committee’s inability, after a reasonable search, to locate a Participant or the Participant’s beneficiary, as applicable, within a period of two years after the Payment Date upon which the payment of benefits becomes due. Unclaimed amounts shall be forfeited at the end of such two-year period. These forfeitures will reduce the obligations of the Company under the Plan. After an unclaimed amount has been forfeited, the Participant or beneficiary, as applicable, shall have no further right to the Participant’s Account. | 44Forfeitures
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This Engagement Letter, as supplemented by any Addenda, is the entire agreement between the parties, and supersedes all prior agreements, whether oral or written, between the parties about the subject matter hereof. Any amendment or other changes to this Engagement Letter or any Addendum must be in writing and signed by both parties. | 38Entire Agreements
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All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof. | 85Survival
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All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed given if delivered by hand delivery, by certified or registered mail (first class postage pre-paid), guaranteed overnight delivery or facsimile transmission if such transmission is confirmed by delivery by certified or registered mail (first class postage pre-paid) or guaranteed overnight delivery to, the following addresses and telecopy numbers (or to such other addresses or telecopy numbers which such party shall designate in writing to the other parties): (a) if to the Company, at its principal executive offices, addressed to the President, with a copy to Martin T. Schrier, Cozen O’Connor, 200 South Biscayne Blvd., Suite 4410, Miami, Florida 33131; and (b) if to the Executive, at the address listed on the signature page hereto. | 65Notices
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Capitalized terms used in this Agreement and not otherwise defined herein are defined in Appendix A . | 28Defined Terms
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Sub-Sublandlord shall not be liable for any damage to the Sub-Subleased Premises or any injury to persons sustained by Sub-Subtenant or its employees, agents, invitees, guests, or other persons caused by conditions or activities on the Sub-Subleased Premises or the Building (including, without limitation, the Cafeteria, Fitness Center, Bike Room or Shower Facilities), or activities of Sub-Subtenant in or upon the Building (including, without limitation, use of the Cafeteria, Fitness Center, Bike Room or Shower Facilities), except to the extent any loss, cost, damage or expense is attributable to the gross negligence or intentional misconduct of Sub-Sublandlord or its agents or employees, and subject to the waiver of subrogation provisions hereof and in the Sublease. Subject to the waiver of subrogation provisions set forth in subsection (b), below, except to the extent caused by the negligence or willful misconduct of Sub-Sublandlord or its agents or employees, (each of the foregoing, an “Indemnified Party”), Sub-Subtenant hereby indemnifies and saves harmless the non-negligent Indemnified Parties from any liability, loss, cost or expense (including, without limitation, reasonable attorneys’ fees) arising out of (i) Sub-Subtenant’s use or occupancy of the Sub-Subleased Premises, the Cafeteria, Fitness Center, Bike Room or Shower Facilities and (ii) Sub-Subtenant’s failure to keep, observe or perform any of the terms, provisions, covenants, conditions and obligations on Sub-Subtenant’s part to be kept, observed or performed under this Sub-Sublease. Subject to the waiver of subrogation provisions set forth in subsection (b), below, except to the extent caused by the gross negligence or willful misconduct of Sub-Subtenant, Sub-Sublandlord hereby indemnifies and saves harmless Sub-Subtenant from any liability, loss, cost or expense (including, without limitation, reasonable attorneys’ fees) arising out of (x) Sub-Sublandlord’s failure to keep, observe or perform any of the terms, provisions, covenants, conditions and obligations on Sub-Sublandlord’s part to be kept, observed or performed under this Sub-Sublease and (y) the negligence or willful misconduct of Sub-Sublandlord or anyone acting by or through Sub-Sublandlord. Sub-Subtenant’s and Sub-Sublandlord’s obligation hereunder shall survive the termination of this Sub-Sublease. Unless carried by Sublandlord, Sub-Subtenant shall carry all insurance, in form and substance as required of Sub-Sublandlord under the Sublease. | 49Indemnifications
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The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “ SEC Reports ”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. | 43Financial Statements
|
At any time or from time to time upon the written request of the Administrative Agent, the Borrower will, and will cause the other Loan Parties to, at its and their expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as the Administrative Agent may reasonably request in order to effect fully the purposes of the Loan Documents. In furtherance and not in limitation of the foregoing, the Borrower shall take, and shall cause the other Loan Parties to take, such actions as the Administrative Agent may reasonably request from time to time to ensure that the Obligations are guaranteed by the Subsidiary Guarantors and the Borrower and are secured by the Collateral (subject in each case to limitations contained in the Loan Documents with respect to (i) Excluded Collateral and (ii) any Collateral on which perfection action is not required to be taken by the Loan Documents). The Borrower shall execute and deliver any amendment to the Section 22 Lien Law Affidavit delivered on the Closing Date reasonably requested by the Administrative Agent in connection with any material revisions to the Building Budget from that submitted at or prior to the Closing Date, or to the extent otherwise required in order to maintain Lender’s lien priority hereunder in accordance with applicable law, as determined by the Administrative Agent in its reasonable discretion. | 45Further Assurances
|
The table of contents, captions, headings and titles in this Lease are solely for convenience of reference and shall not affect its interpretation. This Lease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Lease to be drafted. Each covenant, agreement, obligation or other provision of this Lease on Tenant’s part to be performed, shall be deemed and construed as a separate and independent covenant of Tenant, not dependent on any other provision of this Lease. | 23Construction
|
In the event a claim for indemnification under this Article 7 shall have been finally determined, the amount of the related Loss shall be paid by the Indemnifying Party to the Indemnified Party, in immediately available funds in the currency in which such Losses were denominated, within three business days after such final determination to a bank account specified in writing by the Indemnified Party to the Indemnifying Party no later than five business days prior to the date such payment is due. Any claim, and the liability for and amount of Loss therefor, shall be deemed to be “finally determined” for purposes of this Section 7.4(b) when the parties to such action have so determined by mutual agreement or, if disputed, when a final written determination concerning the amount of the related Losses and the Indemnifying Party’s liability therefore has been rendered. | 68Payments
|
The Company hereby assigns to Simply Good Foods all of the Company’s right, title and interest in and to the Existing Warrant Agreement (as amended hereby) as of the Effective Time (as defined in the Merger Agreement). Simply Good Foods hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement (as amended hereby) arising from and after the Effective Time. | 7Assignments
|
The Company or one of the Subsidiaries shall require the Employee to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Options. | 99Withholdings
|
All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement. | 12Benefits
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No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement (whether or not similar) nor shall such a waiver constitute a continuing waiver. | 97Waivers
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Enter into any transaction of any kind with any Affiliate of any Loan Party, whether or not in the Ordinary Course of Business, other than transactions on fair and reasonable terms substantially as favorable to such Borrower or such Subsidiary as would be obtainable by such Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to (i) transactions between or among the Loan Parties, and (ii) transactions solely between Subsidiaries that are not Loan Parties; provided , further , that the following transactions shall be permitted if not in violation of any Approved Bankruptcy Court Order: (a) intercompany loans among Loan Parties to the extent permitted under Section 8.02 , and (b) any Investment permitted under Sections 8.03(b) , (c) , (d) , (g) , (h) and (i) . | 91Transactions With Affiliates
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Lender shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. In addition, Lender shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise. | 75Remedies
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Except as set forth on Schedule 6.6 , (a) there are no legal actions, suits, proceedings, claims or disputes pending or, to the Knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority against or affecting the Borrower or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (b) there is no injunction, writ, temporary restraining order, decree or any order or determination of any nature by any arbitrator, court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of the Note Documents or which relates to the assets or the business of the Borrower or its Subsidiaries; and (c) there is no litigation, claim, audit, dispute, review, proceeding or investigation currently pending or threatened against the Borrower or its Subsidiaries for any violation or alleged violation of any Requirements of Law, and neither the Borrower nor any Subsidiary has received written notice of any threat of any suit, action, claim, dispute, investigation, review or other proceeding pursuant to or involving any Requirements of Law. | 58Litigations
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In case any provision in this First Amendment to Fifth Amendment and Waiver shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Waiver and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. | 79Severability
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This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986 (“IRC”), as amended and the regulations and other guidance promulgated thereunder (“Section 409A”), to the extent that section is applicable, and it shall be interpreted in a manner that complies with such section to the fullest extent possible. In addition, you are advised to consult with your own, independent accountant and/or tax counsel regarding any and all tax issues related to this Agreement. | 87Taxes
|
Each of the other covenants, representations and warranties in this Agreement shall survive the Closing and shall terminate and expire on the first (1 st ) anniversary of the Closing Date; provided , that (i) each of the Fundamental Representations and the Company’s representations in Sections 4.20 (Investment Company Act), 4.23 (General Solicitation), 4.24 (Offering; Exemption), and 4.25 (No Integrated Offering) shall survive until the date that is two (2) years following the Closing and (ii) any covenant contained in this Agreement that, by its terms, provides for performance following the Closing shall survive the Closing and shall terminate and expire on the first (1 st ) anniversary of the date on which such covenants are due to be performed in full. Any claim by a party under this Agreement with respect to a breach of such covenants, representations and warranties shall be brought no later than the applicable survival date. | 85Survival
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No Party hereto may make any direct or indirect assignment or subcontracting of this Agreement or any interest herein, by operation of laws or otherwise, without the prior written consent of the other Parties hereto. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, personal representatives, executors, legal representatives, successors and permitted assigns. | 8Assigns
|
The Borrower shall (i) perform each of its obligations under this Agreement and the other Related Documents and (ii) comply with all federal, state and local laws and regulations applicable to it and the Transferred Receivables, except, solely with respect to this clause (ii) , where the failure to so comply could not reasonably be expected to have a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions. | 4Applicable Laws
|
There has been no default, breach, violation or event permitting acceleration under the terms of any Receivable (other than a current payment delinquency of not more than 30 days as of the Cutoff Date) and no condition exists or event has occurred and is continuing that with notice, the lapse of time or both would constitute a default, breach, violation or event permitting acceleration under the terms of any Receivable, and there has been no waiver of any of the foregoing. | 62No Defaults
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No representation or warranty made by Credit Parties in this Agreement, the Revolving Loan Documents, the Acquisition Agreement, or in any financial statement, report, certificate or any other document furnished in connection herewith contains any untrue statement of fact or omits to state any fact necessary to make the statements herein or therein not misleading. There is no fact known to Credit Parties or which reasonably should be known to Credit Parties which Credit Parties have not disclosed to Agent in writing with respect to the transactions contemplated by this Agreement which could reasonably be expected to have a Material Adverse Effect. | 31Disclosures
|
Notwithstanding anything in the articles of incorporation or By-laws of Bancorp or Bank to the contrary, the Executive shall at all times during the Executive’s employment by Bancorp or Bank, and after such employment, be indemnified by such entities to the fullest extent applicable law permits for any matter in any way relating to the Executive’s affiliation with Bancorp or Bank; provided, however, that if Bancorp or Bank shall have terminated the Executive’s employment for Cause, then neither Bancorp or Bank shall have any obligation whatsoever to indemnify the Executive for any claim arising out of the matter for which the Executive’s employment shall have been terminated for Cause or for any conduct of the Executive not within the scope of the Executive’s duties under this Agreement. | 49Indemnifications
|
Except as set forth in the SEC Reports, no material default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not (i) in violation of any term or provision of its Charter or Bylaws, or (ii) in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any Governmental Entity applicable to the Company. | 62No Defaults
|
The proceeds of the Loans on the Effective Date shall be used as described in the first sentence of Section 5.10 . | 92Use Of Proceeds
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Employee agrees to employment with the Company and to perform the Company Duties for a period of at least one (1) year from the Effective Date (“ Term ”). On the anniversary of the Effective Date, the parties shall renegotiate the terms of Employee’s employment with the Company. For the avoidance of doubt, following one (1) year from the Effective Date, Employee shall be terminable at will by the Company. | 89Terms
|
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. | 47Governing Laws
|
None of the sale of the Consideration Shares, the execution and delivery by Golden Minerals of this Agreement and the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with or result in a material breach or violation of: (i) the organizational documents of Golden Minerals or William, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which Golden Minerals or William is a party or bound or to which its property is subject, (iii) any statute, law, rule, or regulation, or (iv) any material judgment, writ, injunction, ruling, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over Golden Minerals or William or any of their material properties. | 61No Conflicts
|
Each Secured Party appoints and designates Bank of America as Agent under all Loan Documents. Agent may, and each Secured Party authorizes and instructs Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Documents, for Agent’s benefit and the Pro Rata benefit of the Secured Parties. Each Secured Party agrees that any action taken by Agent or Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by Agent or Required Lenders of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, Applicable Law or otherwise. The duties of Agent shall be ministerial and administrative in nature, and Agent shall not have a fiduciary relationship with any Secured Party, Participant or other Person, by reason of any Loan Document or any transaction relating thereto. Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory, whether to impose or release any reserve, or whether any conditions to funding or to issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to any Lender or other Person for any error in judgment. | 9Authority
|
This Amendment shall constitute a Loan Document under the Amended Term Loan Agreement. This Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. Any determination that any provision of this Amendment or any application hereof is invalid, illegal, or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provisions of this Amendment. Each of the Borrower and the Parent Guarantor represents and warrants that it has consulted with independent legal counsel of its selection in connection herewith and is not relying on any representations or warranties of the Administrative Agent or its counsel in entering into this Amendment. | 59Miscellaneous
|
Any notice or other communication required or which may be given hereunder shall be delivered or sent in accordance with Section 9.1 of the Employment Agreement. | 65Notices
|
Subject to compliance with the Corporation’s policies as from time to time in effect regarding the incurrence, substantiation, verification, and reimbursement of business expenses, the Corporation will pay or reimburse Executive for all reasonable expenses incurred in connection with the performance of Executive’s duties hereunder or for promoting, pursuing, or otherwise furthering the Business of the Corporation, including Executive’s reasonable expenses for travel, entertainment, and similar items. Executive acknowledges and agrees that the provisions of Section 2.5(d) below provide the exclusive reimbursement terms for Executive’s use of any personal vehicles in connection with the performance of his duties as an employee of the Corporation. All expenses eligible for reimbursements in connection with Executive’s employment with the Corporation must be incurred by Executive during the term of employment or service to the Corporation and must be in accordance with the Corporation’s expense reimbursement policies. The amount of reimbursable expenses incurred in one taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Each category of reimbursement shall be paid as soon as administratively practicable, but in no event shall any such reimbursement be paid after the last day of Executive’s taxable year following the taxable year in which the expense was incurred. No right to reimbursement is subject to liquidation or exchange for other benefits. | 41Expenses
|
This Agreement shall be effective upon delivery of this Agreement fully executed by the Seller and Purchaser, which date shall be deemed the Effective Date hereof. Either party may request that the other party promptly execute a memorandum specifying the Effective Date. | 33Effective Dates
|
If any action at law or in equity, including an action for declaratory relief or arbitration, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs of litigation from the other party. Such fees and costs of litigation may be set by the court in the trial of such action or by the arbitrator, as the case may be, or may be enforced in a separate action brought for that purpose. Such fees and costs of litigation shall be in addition to any other relief that may be awarded. | 41Expenses
|
The Term of this Agreement shall commence on the Effective Date and, unless Executive’s employment is terminated at an earlier date in accordance with Section 3 hereof, shall expire on the first anniversary of the Effective Date (the “ Initial Term ”). Effective as of the first anniversary of the Effective Date and each successive one year anniversary of the Effective Date (each an “ Anniversary Date ”), the Term shall be automatically extended until the subsequent Anniversary Date (each a “ Renewal Term ”) unless either party gives written notice of non-renewal to the other party at least 60 days prior to the Anniversary Date on which this Agreement would otherwise be automatically extended that such party elects not to extend the Term; provided, however, that if a Change in Control occurs during the Term then non-renewal of the Term may not occur earlier than the first Anniversary Date following the end of the Transition Period (as defined in Section 3(a) below). The Initial Term, together with any Renewal Terms, is the “ Term .” If Executive remains employed by the Company and the Bank after the Term, then such continued employment shall be according to the terms and conditions established by the Company from time to time and Executive shall no longer be entitled to any severance payments or benefits under this Agreement and any severance rights Executive may have shall be according to the terms and conditions established by the Company from time to time. | 89Terms
|
The outstanding principal balance of each credit subject hereto shall bear interest, and the amount of each drawing paid under the Standby Letter of Credit shall bear interest from the date such drawing is paid to the date such amount is fully repaid by Borrower, at the rate of interest set forth in each promissory note or other instrument or document executed in connection therewith. | 54Interests
|
The Borrowers shall pay to the Administrative Agent and WFS, for their own account, agent’s fees and other compensation in the amounts and at the times set forth in the Fee Letter and any fees set forth in any fee letter or agreement executed in connection with any increase under Section 2.01(b) . | 42Fees
|
The parties agree that from and after the date of this Agreement, none of the terms and conditions of this Agreement or any other agreement entered into by the parties or their affiliates, will be disclosed to any third party other than attorneys, accountants, Buyer's lender and other professionals advising the parties in connection with the contemplated transaction, without the prior written consent of the other party. The parties further agree that any information exchanged in connection with the transaction contemplated by this Agreement is proprietary to the disclosing party, and confidential in nature and it will be treated as such by the receiving party unless such information is or becomes a matter of public record. | 20Confidentiality
|
This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without reference to the choice of law provisions thereof. | 47Governing Laws
|
This Agreement, for all purposes, shall be construed in accordance with the laws of Utah, without regard to conflicts of law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a court of the State of Utah located in Salt Lake County or Utah County, or a federal court of the United States located in the District of Utah. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. | 94Venues
|
No provision of this Agreement providing for any specific remedy to a party shall be construed to limit such party to that specific remedy, and any other remedy that would otherwise be available to such party at law or in equity shall also be available. The parties also intend that the rights and remedies hereunder be cumulative, so that exercise of any one or more of such rights or remedies shall not preclude the later or concurrent exercise of any other rights or remedies. | 75Remedies
|
The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments, the repayment, satisfaction or discharge of all the other Obligations, and the termination of this Agreement. | 85Survival
|
Seller hereby represents to Buyer and Agent that as of the date hereof and taking into account the terms of this Amendment Number Nine, Seller is in full compliance with all of the terms and conditions of the Agreement and each other Repurchase Document and no Default or Event of Default has occurred and is continuing under the Agreement or any other Repurchase Document . | 76Representations
|
This Fifth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Fifth Amendment by telecopy, facsimile, as an attachment to an email or other similar electronic means shall be effective as delivery of a manually executed counterpart of this Fifth Amendment. | 26Counterparts
|
The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will not violate any Requirement of Law applicable to any Loan Party or any of its Restricted Subsidiaries, (c) will not violate or result in a default under any material indenture, material agreement or other material instrument binding upon any Loan Party or any of its Restricted Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Loan Party or any of its Restricted Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of any Loan Party or any of its Restricted Subsidiaries, except Permitted Liens or Liens created pursuant to the Loan Documents, except, in the case of clauses (a) or (b), to the extent the lack of such consent, approval, registration, filing or action, or the occurrence of such violation or default, would not reasonably be expected to have a Material Adverse Effect. | 61No Conflicts
|
This Agreement’s terms, covenants and conditions may be waived only by a written instrument signed by the party waiving compliance. Any party’s failure at any time to require performance of any provision shall, in no manner, affect that party’s right to enforce that or any other provision at a later date. No waiver of any condition or breach of any provision, term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed or to be construed as a further or continuing waiver of that or any other condition or of the breach of that or that provision, term or covenant of this Agreement. | 63No Waivers
|
The Member acknowledges that there would be no adequate remedy at law if the Member fails to perform any of his obligations hereunder, and, accordingly, agrees that Bright Mountain, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Member under this Agreement in accordance with the terms and conditions of this Agreement. Any remedy under this Section 3 is subject to certain equitable defenses and to the discretion of the court before which any proceedings therefor may be brought. | 81Specific Performance
|
If the principal of or interest on any Note, any Letter of Credit reimbursement obligation not reimbursed pursuant to Section 5.1, any reimbursement, payment or amount due the Agent or any of the Lenders, any amendment fee or administrative fee imposed by any of the Lenders, any Letter of Credit fees or any Facility Fee, the Risk Participation Fee or other fee or amount owing to the Lenders or the Agent under this Agreement or under any other Loan Document shall not be paid in full punctually when due and payable. | 68Payments
|
As of the Signing Date, the authorized capital stock of the Company consists of one hundred and one million (101,000,000) shares consisting of one hundred million (100,000,000) shares of Common Stock, par value US$0.0001 per share (the “ Common Stock ”), and one million (1,000,000) shares of preferred stock, par value US$0.0001 per share (the “ Preferred Stock ”), of which 37,261,739 shares of Common Stock and 0 shares of Preferred Stock were issued and outstanding as of June 15, 2017, and all such outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. After giving effect to the Shareholder Approval, the Securities will be duly authorized, and when issued in accordance with this Agreement, (i) will be validly issued, fully paid and non-assessable and will be free and clear of any Encumbrances (other than, with respect to any Investor, any Encumbrances created by or through such Investor and restrictions on transfer imposed by the Securities Act, and applicable State Securities Laws) and each Investor will have good title thereto and (ii) will not have been issued in violation of any preemptive or subscription rights and, except for the anti-dilution provisions in the Company’s outstanding warrants and equity awards issued or to be issued under the Company’s 2014 Share Incentive Plan (as amended and restated by the Company’s Board of Directors (the “ Board ”) on August 7, 2015 and May 9, 2016), will not result in the anti-dilution provisions of any security of the Company becoming applicable. | 16Capitalization
|
Lender reserves the right to sell, assign, transfer, negotiate, or grant participation interests in all or any part of this Note, or any interest in Lender’s rights and benefits hereunder. | 7Assignments
|
Subject to the terms and conditions of this Agreement, each party hereto shall, and shall cause its Affiliates to cooperate with each other in any reasonable manner and to use its reasonable best efforts to make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the transactions contemplated hereby and to obtain each consent (if any) required to be obtained pursuant to any Contract by such party in connection with the transactions contemplated hereby, provided , that such cooperation shall not include any requirement of the Company Group to expend money, commence any litigation or arbitration proceeding, or offer or grant any accommodation (financial or otherwise) to any third party. Notwithstanding anything to the contrary herein, Purchaser agrees that the Sellers and the Company Group shall not have any Liability whatsoever to Purchaser (and Purchaser shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any consents that may have been or may be required in connection with the transactions contemplated by this Agreement or because of the default, acceleration or termination of or loss of right under any such Contract or other agreement as a result thereof. | 22Consents
|
The execution, delivery and performance by Celadon of this Agreement and the Transaction Documents to which Celadon is a party and the consummation by Celadon of the transactions contemplated hereby and thereby do not and will not, with or without the giving of notice or the passage of time or both, (i) violate the provisions of any law applicable to Celadon or any of its properties or assets; (ii) violate any Order of any governmental entity having jurisdiction over Celadon or arbitrator applicable to Celadon or any of its properties or assets; or (iii) result in any breach of or conflict with any terms or conditions, or constitute a default under, any contract, agreement or instrument to which Celadon is a party or by which Celadon or its properties or assets are bound. | 61No Conflicts
|
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