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This Agreement supersedes all other oral and written agreements between the Parties with respect to the matters contained in this Agreement and, except as otherwise provided herein, this Agreement contains all of the covenants and agreements between the Parties with respect to those matters. | 38Entire Agreements
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(a) Interest (other than interest based on the Alternate Base Rate, Canadian Prime Rate or BA Rate) shall be calculated on the basis of a 360-day year for the actual days elapsed; and commitment fees and interest based on the Alternate Base Rate, Canadian Prime Rate or BA Rate shall be calculated on the basis of a 365-day year (or 366-day year, as the case may be) for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Parent Borrower and the affected Lenders of each determination of a Adjusted LIBOR Rate. Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate, the Canadian Prime Rate or the Statutory Reserves shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Parent Borrower and the affected Lenders of the effective date and the amount of each such change in interest rate. | 42Fees
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This Agreement and the other Transaction Documents constitute the entire agreement among the parties, and supersedes and cancels any and all prior agreements among them relating to the subject matter hereof and thereof ( provided , that the Confidentiality Agreement shall survive in accordance with Section 5.3(b) ) and may not be amended or modified except by a written agreement signed by the parties. | 38Entire Agreements
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Neither this Agreement nor any rights of the parties hereto may be assigned or delegated to any other Person. | 7Assignments
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The Bank shall pay a golf club membership and monthly fees at a country club designated by Executive and monthly fees at the Commonwealth Club in Richmond, Virginia, and shall reimburse the Executive for reasonable expenses of outings with clients of the Bank. | 42Fees
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Neither party may assign its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that prior to the Closing Date, Buyer may, without the prior written consent of Seller, assign all or any portion of its rights under this Agreement to an Affiliate so long as Buyer shall deliver to Seller, at least seven (7) Business Days prior to Closing, written notice of such assignment together with reasonable written documentation evidencing the fact that such assignee is an Affiliate of Buyer. Notwithstanding the foregoing, no assignment by Buyer shall relieve Buyer of any of its obligations hereunder, and any permitted assignee of this Agreement pursuant to the preceding sentence shall expressly assume all of Buyer’s obligations and liabilities hereunder, and a copy of such assignment and assumption shall be provided to Sellers. Buyer shall remain primarily liable hereunder in the event of any assignment by it. | 7Assignments
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Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the Committee may impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Section 10(c)), such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms regarding forfeiture of Awards in the event of termination of employment by the Participant, or termination of the Participant’s service relationship with the Company, and terms permitting a Participant to make elections relating to his or her Award. The Committee shall retain full power and discretion to accelerate, waive or modify, at any time, any term or condition of an Award that is not mandatory under the Plan; provided, however , that the Committee shall not have any discretion to accelerate, waive or modify any term or condition of an Award that is intended to qualify as “performance-based compensation” for purposes of section 162(m) of the Code if such discretion would cause the Award to not so qualify or to accelerate the terms of payment of any Award that provides for a deferral of compensation under the Nonqualified Deferred Compensation Rules if such acceleration would subject a Participant to additional taxes under the Nonqualified Deferred Compensation Rules. | 46General
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The Borrower and its Domestic Restricted Subsidiaries own, or are licensed to use, all Intellectual Property material to the conduct of their businesses, and the use thereof by the Borrower and its Domestic Restricted Subsidiaries does not, to the knowledge of the Borrower, infringe upon, misappropriate or otherwise violate the Intellectual Property rights of any other Person, in each case except where the failure to own or license Intellectual Property, or any infringement on Intellectual Property rights would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. | 53Intellectual Property
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During the Employment Period, the Company shall pay to the Executive a base salary (the “ Base Salary ”) at the rate of no less than $500,000 per calendar year, less applicable deductions. The Base Salary shall be reviewed for increase by the Board no less frequently than annually and shall be increased in the discretion of the Board and any such adjusted Base Salary shall constitute the “Base Salary” for purposes of this Agreement. The Base Salary shall be paid in substantially equal installments in accordance with the Company’s regular payroll procedures. | 11Base Salary
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THIS AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF. ALL PRIOR UNDERSTANDINGS, STATEMENTS AND AGREEMENTS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT HEREOF ARE SUPERSEDED BY THIS AMENDMENT . | 52Integration
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This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts, without reference to its conflict-of-laws principles. | 47Governing Laws
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Each of the Guarantors hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Collateral Documents to which such Guarantor is a party and the Guaranty (including without limitation the continuation of each such Guarantor’s payment and performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of such Collateral Documents and the Guaranty against such Guarantor in accordance with their respective terms and the inclusion of all principal, interest and fees in respect of the 2016 Domestic Term Loan Facility as “Obligations” under the Credit Agreement. | 22Consents
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The consolidated financial statements of the Company and the related notes and schedules thereto included in the SEC Documents present fairly, in all material respects, the financial condition of the Company and its consolidated Subsidiaries as of the dates thereof and the results of operations, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries at the dates and for the periods covered thereby. Such financial statements and the related notes and schedules thereto have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise noted therein) and all adjustments necessary for a fair presentation of results for such periods have been made; provided , however , that the unaudited financial statements are subject to normal year-end audit adjustments (which are not expected to be material) and do not contain all footnotes required under generally accepted accounting principles. | 43Financial Statements
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The Company shall pay to Employee a Base Salary at the rate of $450,000.00 per annum through the expiration of the term, payable bi-weekly as per normal pay practices of the Company. Such Base Salary shall be subject to increase based upon review by the Compensation Committee of the Company (the “Committee”) from time to time. | 11Base Salary
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The Company shall use the proceeds from the sale of the Securities hereunder as reflected on Schedule 4.7 and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt other than the Notes, trade accounts payable and other expenses incurred in the ordinary course of business, (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
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If the Executive shall die during the Term, the Term and this Agreement shall terminate and no further amounts or benefits shall be payable hereunder, other than (i) for accrued, but unpaid, Base Salary as of the date of the Executive’s death; (ii) pursuant to life insurance provided under Section 3.5; and (iii) to the extent expressly required pursuant to the terms of the Company’s compensation and benefit plans and policies as in effect on the date of death. | 27Death
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(a) The Borrower will, and will cause each of its Restricted Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or use commercially reasonable efforts to deliver to the Collateral Agent from time to time such schedules, confirmatory assignments, financing statements, transfer endorsements, certificates, reports, landlord waivers, flood zone determinations, flood insurance and related borrower notices, and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require and as are generally consistent with the terms of this Agreement and the Security Documents and are necessary to effectuate the intent of said agreements. | 45Further Assurances
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As of May 18 , 2016 and the date hereof, the capitalization of the Company is as set forth on Schedule 3.1(g)(1) , which Schedule 3.1(g)(1) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. Except as disclosed in Schedule 3.1(g) , the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock incentive plans outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as disclosed in Schedule 3.1(g) , no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as set forth in Schedules 3.1(g)(1) and (2) , there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Other than the Required Approvals, no further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. Except as disclosed in Schedule 3.1(g) , there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. To the knowledge of the Company, except as disclosed in Schedules 3.1(g)(1) and (2) hereto, no Person or group of related Persons beneficially owns (as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement with or by obligation binding upon the Company, beneficial ownership in excess of 5% of the outstanding Common Stock . | 16Capitalization
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The Executive covenants and agrees that, while he is employed by the Company, and after his Termination Date, he shall not make any false, defamatory or disparaging statements about the Company, its affiliates, or the officers or directors of the Company or its affiliates that are reasonably likely to cause material damage to the Company, its affiliates, or the officers or directors of the Company or its affiliates. While the Executive is employed by the Company, and after the Termination Date, the Company agrees, on behalf of itself and its affiliates, that neither the officers nor the directors of the Company or its affiliates in their external communications shall make any false, defamatory or disparaging statements about the Executive that are reasonably likely to cause material damage to the Executive. Nothing in this paragraph 12 shall preclude the Executive or the Company from making truthful statements that are required by applicable law, regulation or legal process. | 64Non-Disparagement
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The parties may sign any number of copies of this Guarantor Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. | 26Counterparts
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Except for the Disclosed Matters, there is no action, suit or proceeding pending against, or to the knowledge of the Borrower threatened against or affecting, the Borrower or any of its Restricted Subsidiaries before any arbitrator or any Governmental Authority, that (i) could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) which would in any material respect draw into question the enforceability of any of the Financing Documents. | 58Litigations
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The Company shall use the proceeds from the sale of the Securities to pay amounts required under the Acquisition Agreement, to repay indebtedness and for general corporate purposes. | 92Use Of Proceeds
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All of the restrictive covenants contained in this Section 13 shall be binding on the assigns, executors, administrators and other legal representatives of the Executive, and shall survive the termination of this Agreement and Executive’s employment. | 85Survival
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Upon the admission of a Substituted Limited Partner, the General Partner shall amend and restate Exhibit A hereto to reflect the name, address, Capital Account, number of Partnership Units, and Percentage Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address, Capital Account and Percentage Interest of the predecessor of such Substituted Limited Partner. | 2Amendments
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Terms used in this Agreement for which meanings are provided in the UCC of the State of New York shall have such meanings unless a different meaning is given to such terms in this Agreement. | 28Defined Terms
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Unless otherwise required by applicable law (including the disclosure requirement of applicable securities laws), each of the Seller and the Servicers agrees to maintain the confidentiality of this Agreement and the other Transaction Documents (and all drafts thereof) in communications with third parties and otherwise; provided that this Agreement may be disclosed to (a) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to the Agent and (b) the Seller’s and/or the Servicers’ legal counsel and auditors if they agree to hold it confidential; provided that only the terms and conditions of this Agreement may be revealed to such parties and not the details of any fees, pricing or interest rates. Unless otherwise required by applicable law, each of the Agent and the Purchaser agrees to maintain the confidentiality of non-public financial information regarding Manitowoc and its Subsidiaries and other information marked as confidential by the Servicers or the Seller; provided , that such information may be disclosed to: (i) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality in form and substance reasonably satisfactory to Manitowoc, (ii) legal counsel and auditors of the Purchaser or the Agent if they agree to hold it confidential, (iii) any nationally recognized statistical rating organization, (iv) any Affiliate of the Purchaser or the Agent and (v) any regulatory authorities having jurisdiction over the Agent or the Purchaser. Nothing in this Section shall prevent disclosure of information as part of a legal proceeding relating to litigation in respect of this Agreement or any other Transaction Document. | 20Confidentiality
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No Event of Default or event that, with the giving of notice, the passage of time, or both, would be an Event of Default, has occurred. | 62No Defaults
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There is no action, suit, investigation, litigation or proceeding affecting any Borrower pending or, to such Borrower’s knowledge, threatened before any court, governmental agency or arbitrator that purports to affect the legality, validity or enforceability of any Loan Document or the other transactions contemplated by the Loan Documents. | 58Litigations
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This Consent may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Consent. Delivery of an executed counterpart of this Consent by facsimile or other electronic transmission (including a ".pdf" file) shall be equally effective as delivery of an original executed counterpart of this Consent. | 26Counterparts
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Executive agrees that during the Employment Period and thereafter, Executive will not make any statement, publicly or privately, to any individual or entity, including, without limitation, clients, customers, employees, financial or credit institutions, which could reasonably be expected to disparage the Company, any of its affiliates or any of their respective employees, officers or directors. | 64Non-Disparagement
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Except as set forth in the Incorporated Documents, there is no action, suit, inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “ Action ”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, reasonably be expected to result in a Material Adverse Effect. Except as set forth in the Incorporated Documents, neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Act. | 58Litigations
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This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon, Company, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company. Being a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee. | 7Assignments
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The business and operations of the Acquiror Company have been and are being conducted in accordance with all applicable Laws and Orders. The Acquiror Company has not received notice of any violation (or any Proceeding involving an allegation of any violation) of any applicable Law or Order by or affecting the Acquiror Company and, to the knowledge of the Acquiror Company, no Proceeding involving an allegation of violation of any applicable Law or Order is threatened or contemplated. The Acquiror Company is not subject to any obligation or restriction of any kind or character, nor is there, to the knowledge of the Acquiror Company, any event or circumstance relating to the Acquiror Company that materially and adversely affects in any way its business, properties, assets or prospects or that prohibits the Acquiror Company from entering into this Agreement or would prevent or make burdensome its performance of or compliance with all or any part of this Agreement or the consummation of the transactions contemplated hereby. | 19Compliance With Laws
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The Agreement is awarded pursuant to and is subject to all of the provisions of the Plan, including amendments to the Plan, if any. In the event of a conflict between these Terms and Conditions and the Plan provisions, the Plan provisions will control. The terms “ you ” and “ your ” refer to the Participant named in the Agreement. Capitalized terms that are not defined herein will have the meanings ascribed to such terms in the Plan or the Agreement. The Company’s rights under these Terms and Conditions and the Agreement may be assigned by the Company. | 59Miscellaneous
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Section 20.6 is hereby deleted in its entirety and replaced with the following. | 7Assignments
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This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California . | 47Governing Laws
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The Board has determined that it is in the best interests of the Company and its shareholders to provide enhanced severance protections to Executives following a Change in Control of the Company subject to certain terms and conditions of the Agreement which can be found in Schedule II. | 17Change In Control
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Employee shall be entitled to 4 weeks paid vacation on an annual basis in accordance with the Company’s policies, as may be established from time to time by the Company for its employees, which shall be taken at such time or times as shall be mutually agreed upon by the Parties. The Employee shall not carry forward any accrued but untaken vacation entitlement to a subsequent holiday year. | 93Vacations
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The proceeds of the Loans shall be used to (a) refinance the Existing Credit Facility, (b) pay fees and expenses in connection with the transactions contemplated hereby and (c) fund working capital and general corporate purposes of the Borrower and its Subsidiaries. | 92Use Of Proceeds
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If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, the Partnership or the Employer (as applicable) shall provide the Executive’s estate or beneficiaries with the Accrued Obligations and the timely payment or delivery of the Other Benefits, and shall have no other severance obligations under this Agreement. The Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days following the Date of Termination (except as otherwise required to be paid sooner pursuant to applicable law). With respect to the provision of the Other Benefits, the term “Other Benefits” as utilized in this Section 5(b) shall include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Partnership, the Employer and the Affiliated Companies to the estates and beneficiaries of peer executives of the Partnership, the Employer and the Affiliated Companies under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peer executives of the Partnership, the Employer and the Affiliated Companies and their beneficiaries. | 27Death
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The terms and provisions contained herein shall constitute the entire agreement between the Parties with respect to Executive’s employment with the Company during the time period covered by this Agreement. This Agreement replaces and supersedes any and all existing agreements entered into between Executive and the Company relating generally to the same subject matter including Executive’s prior employment agreement dated February 19, 2014. | 38Entire Agreements
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The Company shall have the right to satisfy any obligation of the Company to withhold taxes or other amounts with respect to the Stock Units by withholding Shares otherwise deliverable to the Employee with respect to the Stock Units having a Fair Market Value equal to the statutory minimum amount of such tax or other withholdings. Furthermore, the Company may elect to deduct from any cash payment made to the Employee pursuant to this Agreement the amount of any taxes or other amounts which the Company is or will be required to withhold with respect to such cash payment. | 87Taxes
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Borrower, Master Tenant, each Property and the uses thereof comply in all material respects with all applicable Insurance Requirements and Legal Requirements, including building and zoning ordinances and codes. Each Property conforms to current zoning requirements (including requirements relating to parking) and is neither an illegal nor a legal nonconforming use except as specified in the zoning report delivered to Lender in connection with the Closing. Neither Borrower nor Master Tenant is in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority the violation of which would reasonably be expected to result in a Material Adverse Effect. There has not been committed by or on behalf of Borrower, Master Tenant or, to Borrower’s knowledge, any other person in occupancy of or involved with the operation or use of any Property, any act or omission affording any federal Governmental Authority or any state or local Governmental Authority the right of forfeiture as against any Property or any material portion thereof or any monies paid in performance of its obligations under any of the Loan Documents. None of Borrower, Master Tenant and Sponsor has purchased any portion of the Properties with proceeds of any illegal activity. | 19Compliance With Laws
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Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings or its Restricted Subsidiaries) unless such transaction is (a) otherwise not prohibited under this Agreement and (b) upon fair and reasonable terms no less favorable to Holdings or such Restricted Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, Holdings and its Restricted Subsidiaries may (i) pay to the Sponsor and its Affiliates fees, indemnities and expenses permitted by the Management Agreement; (ii) enter into and perform its obligations under the Management Rights Agreement; (iii) enter into any transaction with an Affiliate that is not prohibited by the terms of this Agreement to be entered into by Holdings or such Restricted Subsidiary with an Affiliate; (iv) without being subject to the terms of this Section 7.10, enter into any transaction with any Person which is an Affiliate of Holdings only by reason of such Person and Holdings having common directors; (v) enter into the Canadian Reorganization or the UK Reorganization and (vi) transactions in connection with any Permitted Receivables Financing. For the avoidance of doubt, this Section 7.10 shall not apply to (i) employment, benefit, compensation, bonus, retention and severance arrangements with, and payments of compensation or benefits to or for the benefit of, current or former employees, officers or directors of Holdings or any of its Restricted Subsidiaries, including, without limitation, Randy Snyder or (ii) Investments by Affiliates in Qualified Capital Stock of Holdings (and/or such Affiliate’s exercise of any permitted rights with respect thereto) and investments by Affiliates in Term Loans in accordance with Section 10.6(h). | 91Transactions With Affiliates
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The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which would have a Material Adverse Effect. | 87Taxes
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In the event that the Employee’s employment and/or Employment Term ends on account of the Employee’s Disability, the Company shall pay or provide the Employee with the Accrued Benefits, the Prior Year Bonus, and the Pro-Rata Bonus. The Prior Year Bonus shall be payable in a single lump sum on the date on which annual bonuses are paid to the Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs. The Pro-Rata Bonus shall be payable in a single lump sum on the date on which annual bonuses are paid to the Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs. | 30Disability
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This Agreement may contain more than one counterpart of the signature page and this Agreement may be executed by the affixing of the signatures of each of the Members, which may be delivered via facsimile or .pdf, to one of such counterpart signature pages. All of such counterpart signatures pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. | 26Counterparts
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The Borrower agree to reimburse each Secured Debt Representative for its reasonable out of pocket expenses in connection with this Priority Confirmation Joinder, including the reasonable fees, other charges and disbursements of counsel. | 41Expenses
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The Board of Managers shall have the authority to execute and record any and all documents required in connection with the dissolution, winding up and Termination of the Company. | 88Terminations
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The Company shall use the proceeds of this Note for research and development and other general corporate purposes. | 92Use Of Proceeds
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All payments to the Executive under this Agreement will be subject to all applicable withholding of applicable taxes. | 99Withholdings
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This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes the Existing Employment Agreement and any and all other prior agreements, promises, understandings and representations regarding the Executive’s employment, compensation, severance or other payments contingent upon the Executive’s termination of employment, whether written or otherwise. | 38Entire Agreements
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This Agreement sets forth the entire agreement reached by the Parties. This Agreement supersedes all prior representations, statements, proposals, negotiations, discussions, and understandings regarding the same subject matter. This is an integrated agreement. This Agreement may not be modified or amended except in a writing signed by all of the Parties hereto expressly referencing this Agreement. | 38Entire Agreements
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This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. | 26Counterparts
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The Company will maintain and preserve, and except as permitted by Section 10.3 , will cause each other Borrower to maintain and preserve, its respective existence and good standing under the laws of its state of jurisdiction, as a corporation or other form of business organization, as the case may be, and all rights, privileges, licenses, patents, patent rights, copyrights, trademarks, trade names, franchises and other authority to the extent material and necessary for the conduct of their respective businesses in the ordinary course as conducted from time to time. | 40Existence
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(a) Unless previously terminated, the Revolving Commitments shall terminate on the Revolving Maturity Date and (b) the Term Loan Commitments shall terminate following the funding of the Borrowings made on the Closing Date as provided in Section 2.01(b). | 88Terminations
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The headings used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize, or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no headings had been used in this Agreement. | 48Headings
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Except for any notice required under applicable law to be given in another manner, any notice given under this Agreement shall be given in the manner stipulated by Section 9.01 of the Credit Agreement. Each Pledgor irrevocably designates Borrower as the agent for such Pledgor for the purpose of receiving any notices from Administrative Agent or any Secured Party pursuant to this Agreement and agrees that notices given by Administrative Agent or any Secured Party to the Borrower shall be effective as notice to such Pledgor if given in a manner stipulated by Section 9.01 of the Credit Agreement. | 65Notices
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Executive shall be entitled to four (4) weeks of annual vacation leave for each Fiscal Year during which Executive is employed (prorated for Executive’s initial year, if not a full year). Such leave shall be administered in accordance with the Company’s vacation policy. | 93Vacations
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Regardless of any action the Company or any Subsidiary of the Company takes with respect to any or all income tax, social security, payroll tax, payment on account or other tax-related withholding (“Tax”) that the Recipient is required to bear pursuant to all applicable laws, the Recipient hereby acknowledges and agrees that the ultimate liability for all Tax is and remains the responsibility of the Recipient. | 86Tax Withholdings
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The Company shall use its commercially reasonable efforts to cause the Registration Statement to remain effective with a current prospectus through and including the expiration date of the Warrants (or the date all Warrants have been exercised or duly called, if earlier), and shall notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order or of the initiation, or to the Company’s knowledge, the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or to the Company’s knowledge, the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission related to the Prospectus; and (vi) of the happening of any event during the period described in this Section 3(d) that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement, the Pricing Disclosure Package or the Prospectus untrue or that requires the making of any changes in (a) the Registration Statement in order to make the statements therein not misleading, or (b) in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company shall make every reasonable effort to obtain promptly the lifting of such order. | 34Effectiveness
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No delay or failure on the part of Lender or on the part of any holder of the Note in the exercise of any right, power or privilege granted under this Loan Agreement, or under any other Loan Document, or available at law or in equity, shall impair any such right, power or privilege or be construed as a waiver of any Event of Default or any acquiescence therein. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege. No waiver shall be valid against Lender unless made in writing and signed by Lender, and then only to the extent expressly specified therein. | 63No Waivers
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The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents; (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien (except Liens in favor of the Purchasers) upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected; or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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Each of the Parties acknowledge and agree that irreparable injury to the other Party would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable by the remedies available at law (including the payment of money damages). It is accordingly agreed that Engine, on the one hand, and the Company, on the other hand (the “ Moving Party ”), will each be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other Party will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. This Section 10 is not the exclusive remedy for any violation of this Agreement. | 81Specific Performance
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As of the date of this Agreement, set forth on Schedule 3.16 is a summary of all insurance policies maintained by Holdings and its Subsidiaries (a) with respect to properties material to the businesses of Holdings and its Subsidiaries against such casualties and contingencies and of such types and in such amounts as are customary in the case of similar businesses operating in the same or similar locations, and (b) required to be maintained pursuant to the Security Documents. All such insurance policies are maintained with financially sound and responsible insurance companies. | 51Insurances
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THIS AMENDMENT, AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. | 47Governing Laws
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Aquarius, constituting the Certificate Majority, does hereby (i) consent to, approve, and authorize in all respects the issuance of New Securities in the Qualified Financing and the issuance of any Interim Preferred in any Interim Financing, in each case including, but not limited to, for purposes of (a) Sections 3(d) and 4 of the Certificate of Designation and (b) any applicable provisions of the Delaware General Corporation Law, and (ii) waive in all respects the application of Section 7(b) of the Certificate of Designation with respect to the issuance of New Securities in the Qualified Financing and the issuance of Common Stock, Common Stock Equivalents, and/or Interim Preferred in the Interim Financing. | 22Consents
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Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by a binding arbitration process administered by JAMS/Endispute in Boston, Massachusetts. Such arbitration shall be conducted in accordance with the then-existing JAMS/Endispute Rules of Practice and Procedure, with the following exceptions if in conflict: (i) one arbitrator who is a retired judge shall be chosen by JAMS/Endispute; (ii) each Party to the arbitration will pay one-half of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (iii) arbitration may proceed in the absence of any Party if written notice (pursuant to the JAMS/Endispute rules and regulations) of the proceedings has been given to such Party. Each Party shall bear its own attorney’s fees and expenses; provided that the arbitrator may assess the prevailing Party’s fees and costs against the non-prevailing Party as part of the arbitrator’s award. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided, however , that nothing in this subsection shall be construed as precluding the bringing of an action for injunctive relief or specific performance as provided in this Agreement. | 6Arbitration
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The provisions of Section 9 of the Agreement are incorporated into this Amendment by reference and made a part hereof unless expressly stated otherwise in this Amendment. If at any time any provision of this Amendment shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any provision of this Amendment and the Agreement. The Agreement, as amended by this Amendment, constitutes the entire agreement between the parties concerning the subject matter hereof and incorporates all representations made in connection with negotiation of the same. The terms hereof may not be terminated, amended, supplemented or modified orally, but only by a written instrument duly authorized by each of the parties hereto. The Agreement, including this Amendment, shall be binding on and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Amendment may be executed by one or more of the parties on any number of separate counterparts each of which counterparts shall be an original, but all of which when together shall be deemed to constitute one and the same instrument. The definitions of any capitalized terms in this Amendment not specifically defined in this Amendment shall be governed by the Agreement. | 59Miscellaneous
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Each party hereto shall jointly and severally indemnify and hold harmless the other party and such other party's agents, beneficiaries, affiliates, representatives and their respective successors and assigns (collectively, the "Indemnified Persons") from and against any and all damages, losses, liabilities, taxes and costs and expenses (including, without limitation, attorneys' fees and costs) (collectively, "Losses") resulting directly or indirectly from (a) any inaccuracy, misrepresentation, breach of warranty or nonfulfillment of any of the representations and warranties of such party in this Agreement, or any actions, omissions or statements of fact inconsistent with in any material respect any such representation or warranty, (b) any failure by such party to perform or comply with any agreement, covenant or obligation in this Agreement. | 49Indemnifications
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This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date or, in the case of the Option Securities, prior to the Additional Closing Date (i) trading generally shall have been suspended or materially limited on or by any of the New York Stock Exchange or The Nasdaq Global Market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum. | 88Terminations
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No Borrower or Former Borrower will disclose the contents of this Agreement, the Credit Agreement or any of the other Financing Documents to any third party (including, without limitation, any financial institution or intermediary) without Agent’s prior written consent, other than to Borrowers’ and Former Borrowers’ officers and advisors on a need-to-know basis or as otherwise may be required by Law, including to any court or regulatory agency having jurisdiction over such Borrower or Former Borrower. Each Borrower and Former Borrower agrees to inform all such persons who receive information concerning this Agreement, the Credit Agreement and the other Financing Documents that such information is confidential and may not be disclosed to any other person except as may be required by Law, including to any court or regulatory agency having jurisdiction over such Borrower or Former Borrower. | 20Confidentiality
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THIS CONTRACT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ALL OF THE OBLIGATIONS CONTAINED IN THIS CONTRACT ARE PERFORMABLE IN BEXAR COUNTY, TEXAS. | 4Applicable Laws
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All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Junior Lien Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it at the address set forth under its signature hereto, which information supplements Section 8.11 of the Junior Lien Intercreditor Agreement. | 65Notices
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The term of this Agreement shall commence on the Effective Date and shall continue until the first to occur of (a) the closing of the transactions contemplated by the Merger Agreement (the “ Closing ”), (b) the date of Holder’s Qualifying Termination (as defined below), provided such Qualifying Termination occurs prior to the Merger Termination Date (as defined below), or (c) the lapse of the Transfer Restrictions set forth herein with respect to all shares of the Company’s common stock (the “ Shares ”) issued to Holder upon the accelerated vesting of the Unvested Equity Awards. Following the expiration of the term of this Agreement, the Transfer Restrictions, if any, set forth herein shall lapse and no longer apply. | 89Terms
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The parties agree that this Assignment may be executed by the parties in one or more counterparts and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. | 26Counterparts
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Each Member covenants and agrees that: (a) it, he or she will not disclose or make use of any Trade Secrets or Confidential Information of the Company other than as necessary in connection with the performance of his or her duties as an employee of, or consultant to, the Company; and (b) it, he or she shall not, directly or indirectly, transmit or disclose any Trade Secret or Confidential Information of the Company to any person and shall not make use of any such Trade Secret or Confidential Information, directly or indirectly, for, as applicable, himself, herself or others, without the prior written consent of the Company, except for a disclosure that is required by any law, order or legal process, in which case such Holder shall provide the Company prior written notice of such requirement as promptly as practicable so that the Company may contest such disclosure. To the extent that such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and does not, limit the Company’s rights or remedies thereunder and the time period for prohibition on disclosure or use of such information is until such information becomes generally known to the public through the act of one who has the right to disclose such information without violating a legal right of the Company. | 20Confidentiality
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No condition or event shall exist or have occurred at or as of the date of such Advance which would constitute a Default or Event of Default hereunder. | 62No Defaults
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This Agreement has been made and entered into in the State of California and shall be construed in accordance with the laws of the State of California without giving effect to the principles of conflicts of law thereof. | 47Governing Laws
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The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The Assignee, if it shall not be a Lender, shall deliver to the Agent an Administrative Questionnaire. | 7Assignments
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This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legatees, assigns and transferees, as the case may be. | 13Binding Effects
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The provisions of this Section 9 shall survive the termination of this Agreement. | 85Survival
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THIS AGREEMENT SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES. | 47Governing Laws
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Executive shall be entitled to four (4) weeks of paid vacation during each calendar year of the Term, during which period his Salary shall be paid in full. Executive shall take his vacation at such time or times as Executive and the Corporation shall determine is mutually convenient. It is expected that vacation time for each calendar year will be taken in such calendar year and that unused vacation time shall not rollover to subsequent calendar years. | 93Vacations
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In the event any provision of this Plan is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of this Plan, and this Plan will be construed and enforced as if the illegal or invalid provision had not been included. | 79Severability
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During the Term of Employment, Executive shall be reimbursed for reasonable travel and other expenses incurred or paid by Executive in connection with the performance of his services under this Agreement, upon presentation of expense statements or vouchers or such other supporting information as may from time to time be requested by the Company, in accordance with such policies of the Company as are in effect as of the Commencement Date and as may be modified by the Company from time to time, under such terms as may be applicable to officers of Executive’s rank employed by NBTB, NBT Bank, or their affiliates. All expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Executive (provided that if any such reimbursements constitute taxable income to Executive, such reimbursements shall be paid no later than March 15 th of the calendar year following the calendar year in which the expenses to be reimbursed were incurred), and no such reimbursement of expenses eligible for reimbursement in any taxable year shall in any way affect the expenses eligible for reimbursement in any other taxable year. | 41Expenses
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NOTWITHSTANDING ANY OF THE FOREGOING, NOTHING IN THE LOAN DOCUMENTS WILL LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY SECURED PARTIES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, TO MOVE TO COMPEL ARBITRATION OR MOVE TO STAY OR DISMISS A LAWSUIT IN FAVOR OF ARBITRATION, AND EACH TRIBAL PARTY’S WAIVER OF SOVEREIGN IMMUNITY WILL EXPRESSLY EXTEND TO SUCH ACTIONS. EACH OF THE TRIBAL PARTIES HEREBY AGREES THAT ITS LIMITED WAIVER OF SOVEREIGN IMMUNITY AND OTHER WAIVERS DESCRIBED IN SECTIONS 9.11 OR 9.12 ARE IRREVOCABLE AND AGREES NOT TO REVOKE OR FURTHER LIMIT, IN WHOLE OR IN PART, ITS LIMITED WAIVER OF SOVEREIGN IMMUNITY OR THE WAIVERS DESCRIBED IN THESE SECTIONS OR IN ANY WAY ATTEMPT TO REVOKE OR FURTHER LIMIT, IN WHOLE OR IN PART, SUCH LIMITED WAIVER OF SOVEREIGN IMMUNITY. IN THE EVENT THAT ANY OF THE TRIBAL PARTIES (I) REVOKES, FURTHER LIMITS OR ATTEMPTS TO REVOKE OR FURTHER LIMIT THE LIMITED WAIVER OF SOVEREIGN IMMUNITY DESCRIBED IN SECTIONS 9.11 OR 9.12 , (II) TAKES ANY ACTION WHICH IS INCONSISTENT WITH THE WAIVERS DESCRIBED IN SECTIONS 9.11 OR 9.12 OR (III) FAILS TO SUBMIT TO THE JURISDICTION OF THE COURTS AS DESCRIBED IN SECTIONS 9.11 OR 9.12 , EACH OF THE TRIBAL PARTIES HEREBY CONSENTS TO THE ENTRY OF APPROPRIATE INJUNCTIVE RELIEF. THE TRIBE’S WAIVERS, CONSENTS AND AGREEMENTS IN ANY PROVISION OF SECTIONS 9.11, 9.12 and 9.13, SHALL TO THE EXTENT PERMITTED BY LAW (OTHER THAN LAW OF THE TRIBE), APPLY TO ALL SHARED IMMUNITY PERSONS. | 59Miscellaneous
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Buyer may at any time send Sellers a notice showing the calculation of any amounts payable pursuant to this Article 12 , and Sellers shall pay such amounts to Buyer within the time period stated in the applicable provision of this Article 12 , or if no such time period is stated, within ten (10) Business Days after Sellers receives such notice. Each Party’s obligations under this Article 12 shall survive any assignment of rights by, or the replacement of Buyer, the termination of the Transactions and the repayment, satisfaction or discharge of all obligations under any Repurchase Document. | 68Payments
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The Executive will perform such duties and services for the Company as may be designated from time to time by the Board of Directors (the “Board”) and the Chief Executive Officer of the Company. The Executive agrees to serve the Company faithfully and to the best of his ability under the direction of the Board and to carry out the functions typically performed by a Chief Financial Officer. The Executive further agrees to perform such duties in accordance with the general fiduciary duties of officers and directors arising under the Delaware General Corporation Law. The Executive is expected and required to devote substantially all of his time and attention during normal business hours to the affairs of the Company and/or its subsidiaries. | 46General
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This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and, except as otherwise provided herein, supersedes all prior discussions, agreements, and understandings of every kind and nature between the Parties hereto and neither Party shall be bound by any term or condition other than as expressly set forth or provided for in this Agreement. Effective as of the date hereof, the Prior Agreement is hereby terminated and this Agreement satisfies all entitlements set forth in the Prior Agreement; provided, however, that Section 7 and Section 16 of the Prior Agreement shall remain in full force and effect. | 38Entire Agreements
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The laws of the State of Colorado govern this Agreement without regard to conflict of laws principles. Employee and the Company each hereby consents to the personal jurisdiction of the state courts located in the City and County of Denver, State of Colorado, and the federal district court sitting in the City and County of Denver, State of Colorado, if that court otherwise possesses jurisdiction over the matter, for any legal proceeding concerning Employee’s employment or termination of employment, or arising from or related to this Agreement or any other agreement executed between Employee and the Company. Should an action be brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in prosecuting the action. | 47Governing Laws
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The effective date of this Assignment Agreement (the “Effective Date”) shall be the later of the date specified in Item 5 of Schedule 1 or two (2) Business Days (or such shorter period agreed to by the Administrative Agent) after a Notice of Assignment substantially in the form of Exhibit “I” attached hereto has been delivered to the Administrative Agent. Such Notice of Assignment must include the consent of the Administrative Agent required by Section 12.3.1 of the Credit Agreement. In no event will the Effective Date occur if the payments required to be made by the Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on the proposed Effective Date. The Assignor will notify the Assignee of the proposed Effective Date no later than the Business Day prior to the proposed Effective Date. As of the Effective Date, (i) the Assignee shall have the rights and obligations of a Lender under the Loan Documents with respect to the rights and obligations assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its rights and be released from its corresponding obligations under the Loan Documents with respect to the rights and obligations assigned to the Assignee hereunder. | 33Effective Dates
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Upon the date of the issuance or increase of a Letter of Credit, the Issuing Lender shall be deemed to have sold to each other Lender and each other Lender shall have been deemed to have purchased from the Issuing Lender a participation in the related Letter of Credit Obligations equal to such Lender’s Revolving Pro Rata Share at such date and such sale and purchase shall otherwise be in accordance with the terms of this Agreement. The Issuing Lender shall promptly notify each such participant Lender by facsimile, telephone, or electronic mail (PDF) of each Letter of Credit issued or increased and the actual dollar amount of such Lender’s participation in such Letter of Credit. | 67Participations
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(i) On the Closing Date for each holder of an Outstanding Warrant that delivers a duly executed Warrant Surrender Agreement to Parent prior to the Closing Date and (ii) within three (3) Business Days following the delivery of a duly executed Warrant Surrender Agreement to Parent for each holder of an outstanding Warrant that delivers a duly executed Warrant Surrender Agreement to Parent after to the Closing Date, Parent shall cause to be paid by the Paying Agent (as defined in Section 1.9(a) ) to each such holder of an Outstanding Warrant the consideration specified in Section 1.6(a) , without interest. For each Effective Time Holder of an Outstanding Warrant who has delivered a Warrant Surrender Agreement to Parent at least three (3) Business Days prior to the Closing Date, such Effective Time Holder shall be entitled to receive a payment equal to his, her or its Pro Rata Share of the Accelerable Escrow Deposit from the Paying Agent at the same time as payment in respect of the shares of Company Capital Stock subject to his, her or its Company Warrant pursuant to this Section 1.6 and Section 1.9 . For each Effective Time Holder of an Outstanding Warrant who delivers a Warrant Surrender Agreement to Parent later than the third (3 rd ) Business Day prior to the Closing Date, such Effective Time Holder shall be entitled to receive, upon the later of the date on which such Effective Time Holder delivers a Warrant Surrender Agreement to Parent and the date on which such Effective Time Holder is entitled to receive payment for the shares of Company Capital Stock subject to his, her or its Company Warrant pursuant to Section 1.9 , payment of an amount equal to the difference of (i) his, her or its Pro Rata Share of the Accelerable Escrow Deposit minus (ii) such Effective Time Holder’s Pro Rata Share of (x) any amounts previously released to the Parent Indemnitees from the Accelerable Escrow and (y) any Accelerable Escrow Continuing Claims. | 68Payments
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This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument . Counterparts may be delivered via facsimile, electronic mail or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. | 26Counterparts
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The Parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement. | 96Waiver Of Jury Trials
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The Parent will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority (including without limitation Environmental Laws), and all agreements and other contractual instruments, applicable to it or its property, in each case except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Parent will maintain in effect and enforce policies and procedures designed to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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Except as otherwise provided in the Plan or herein, this Agreement shall be construed and enforced according to the laws of the State of Georgia, without regard to the conflict of laws provisions of any state, and in accordance with applicable federal laws of the United States. The Company and the Participant agree that any dispute arising from this Agreement shall be resolved only in a state or federal court sitting in Fulton County, Georgia, which shall have exclusive jurisdiction over any such dispute. The Company and the Participant consent to personal jurisdiction and waive any objection to jurisdiction or venue in any such court. | 47Governing Laws
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Seller has delivered to TJC the financial statements for the Subject Franchises as of and for the calendar years 2013 and 2014 and for the first six (6) months of 2015 (collectively, the “ Financial Statements ”). The Financial Statements fairly present and will fairly present the financial position and results of operations of the Subject Franchises as of and for the periods presented and are prepared in accordance with U.S. generally accepted accounting principles, applied on a consistent basis. | 43Financial Statements
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Subject to the terms and conditions hereof, the Company agrees to issue and sell to the Purchaser and, in consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Purchaser, agrees to purchase the Initial Note for a minimum purchase price of $2,500,000 (the " Minimum Purchase Price "). During the Investment Period, the Purchaser may invest up to an additional $2,500,000 for a total aggregate purchase price of $5,000,000 (the " Maximum Purchase Price "). Subject to all conditions to closing being satisfied or waived, the Initial Closing of the purchase and sale of the Note, at the Minimum Purchase Price, shall take place at the offices of Hunter Taubman Fischer LLC (the " Initial Closing ") at 5:00 pm (EDT) (or at such earlier time agreed to by the Company and Purchaser) on June 10, 2016 (the " Initial Closing Date ") which can be further extended up to thirty (30) days by the mutual agreement of the Company and the Purchaser. During the Investment Period, the Purchaser shall have the right to invest additional amounts up to the Maximum Purchase Price and, the Company and the Purchaser may hold additional closings up to the Maximum Purchase Price (each, a " Closing " and upon investment of the Maximum Purchase Price or expiration of the Investment Period, the " Final Closing "). At each Closing (each a " Closing Date "), the Purchaser shall pay the additional purchase price to be invested and tender the Initial Note or any subsequently issued Note for a new Note at each such Closing that represents the full amount invested by the Purchaser up to the date of such Closing. | 18Closings
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